2010 (6) TMI 206 - AT - Central Excise

Production capacity based duty- The appellants were granted the permission to avail the special procedure as laid down under Rule 96ZA of Central Excise Rules 1944 for the period from 15-9-97 to 14-9-98 as per the declaration filed by them for the maximum 5 cold rolling machines installed in the factory. However with effect from 1-2-98 they started paying the duty only on 3 cold rolling machines with a stoppage of two cold rolling machines for which they stated that these two cold rolling machines were stopped as they were very old one and their present condition required higher costs and time for the maintenance consumed more electricity and proportionately higher quantity of raw materials. The appellant sent the letter to the department that the said two machines would not be operated. Held that- It is the case where the two machines in question stopped functioning altogether w.e.f. 1-2-98 onwards and the only fault on the part of the assessee can be said that the same were not dismantled and de-installed. The appellants cannot be held to pay for the same. Set aside the impugned order and allow the appeal.

Summary

Issues:
Interpretation of Rule 96ZB regarding duty liability for cold rolling machines; Dispute over the meaning of "installed" and "utilized" in the context of Central Excise Rules; Compliance with notification fixing rates of duty per machine; Requirement of written approval for changes in the number of machines installed; Applicability of penalty and interest under Central Excise Act.

Analysis:

Interpretation of Rule 96ZB and Duty Liability:
The case involved a dispute over the interpretation of Rule 96ZB concerning the duty liability for cold rolling machines. The appellant had stopped using two cold rolling machines due to their old condition, leading to a disagreement on whether duty was still payable for these machines. The Revenue contended that duty must be paid once a machine is installed, regardless of its utilization, while the appellant argued that "installed" should refer to machines actually being utilized. The Tribunal analyzed the provisions and held that duty is payable for machines installed, regardless of their operational status. However, the Tribunal noted that the appellant had intimated the authorities about the non-functioning machines, highlighting the need for written approval for changes in the number of machines installed.

Interpretation of "Installed" and "Utilized" in Notification:
The Tribunal further examined the notification fixing rates of duty per machine and the distinction between "installed" in Rule 96ZB and "utilized" in the notification. It concluded that non-utilization of installed machines does not justify duty payment, emphasizing the requirement for machines to be both installed and utilized. The Tribunal clarified that the appellant's failure to dismantle the non-operational machines did not warrant duty payment for them.

Compliance with Notification and Written Approval Requirement:
The Tribunal highlighted the importance of compliance with the notification's provisions and the necessity of obtaining written approval for changes in the number of installed machines. While the appellant had informed the authorities about the non-functioning machines, the absence of written approval was noted. The Tribunal emphasized that the onus was on the authorities to grant approval once informed by the appellant.

Applicability of Penalty and Interest:
The Tribunal considered the penalty and interest provisions under the Central Excise Act. It discussed a previous case cited by the Revenue but distinguished it from the current scenario where the machines were not utilized at all. The Tribunal set aside the impugned order, ruling in favor of the appellant and granting consequential relief.

In conclusion, the Tribunal's detailed analysis focused on the legal interpretation of relevant rules, notification provisions, compliance requirements, and the applicability of penalty and interest under the Central Excise Act, resulting in the appeal being allowed with consequential relief to the appellant.