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2018 (10) TMI 80 - AT - Central ExciseRefund of excise duty paid - Compound levy scheme for SS Patta/ Patti - abatement on pro-rata basis - refund claimed on the ground that they have paid the excise duty for the entire month of November 2016and February 2017 whereas the cold rolling machines operating during those months were dismantled - refund was rejected on the ground that the appellant have not opted for the first time under the compounded levy scheme in both these months and as such the conditions of the impugned notification remains unfulfilled. Whether the refund claim of the proportionate Central excise duty deposited for the non working period of newly added machines is admissible to appellant, or otherwise? Held that:- The appellant had applied for addition of cold rolling machines and the permission were granted by the superintended Jodhpur. It is thereafter that the appellant filed the impugned refund claim for duty deposited for the non working period of machines. The aforesaid notification has been issued under the provisions of Rules 15 of Central Excise Rules, 2002. Said rule provides for special procedure for payment of duty on the basis of such factors as may be relevant to production of such goods. This notification gives an option to the manufacturer of SS Patta/ Patti which are subjected to the process of cold rolling, whereby assessee can pay excise duty on the basis of no. of cold rolling machines installed for cold rolling of those goods. Since this notification is issued under Central Excise Rules the provision thereof cannot be construed in the manner which is against Central Excise Act. Rule 3 of Central excise Act 1994 says that the duty is leviable on the manufacture of the excisable goods. Hence, when no cold rolling machine was installed or any of the machine was not operational question of payment of duty including such non-operational/ non-installed machine shall not arise. The decision in the case of Jupiter Industries [2006 (4) TMI 164 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] squarely applies to the appellant wherein it was held that payment of duty after dismantling of machines and discontinuance of production is not contemplated by Rule 96 ZB and 96 ZB(2) of Central Excise Rules, 1944. Sub Rule 2 of Rule 96 ZB lays down the method of calculation of sum payable. It was held that these rules in no way stipulates that any sum at the compounded rate is payable towards duty for the machine which is not in existence with the manufacturer nor does it say that no refund claim can be made with regard to excess payment made - The decision is squarely applicable in the instant case where the appellant had paid the duty for the months of November to February despite that all cold rolling machines were not operating for certain no. of days, during the month of November 2016 to February 2017. The appellant is entitled for the proportionate refund of duty for the days when the cold rolling machines were not operational - appeal allowed - decided in favor of appellant.
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