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TMI Blog2011 (2) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... Rolling Machines installed in the factory, subject to condition that they would not take Cenvat credit of duty paid on any raw materials or capital goods under the provisions of Cenvat Credit Rules. As per para 3 of the Notification, a manufacturer whose application has been granted under para 2, shall pay a sum calculated at a rate specified in this Notification, subject to the conditions herein laid down and such payment shall be in full discharge of his duty liability on his production of Cold Re-rolled Stainless Steel Pattas/Pattis during the period, for which the said sum has been paid. In terms of para 3(2), the sum payable under sub-para 3(1) shall be calculated by application of the appropriate rate to the maximum number of Cold Rolling Machines installed by or on behalf of such manufacturer in one or more premises at any time during three calendar months immediately preceding the calendar month in which the application under para 2 has been made. In all these cases after obtaining the permission to work under this scheme, the appellants at one point or other dismantled one or more of the Cold Rolling Machines but continued to pay the duty in respect of the same. The disma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no duty is leviable for the period when a machine has not been operated or has been dismantled, as when there is no production in respect of a machine, which is not in existence, there is no question of charging any Central Excise Duty in respect of that machine, that in this case Hon'ble Rajasthan High Court also held that the principle of unjust enrichment has no applicability to the refund of the duty paid in respect of the machine which had been dismantled, that the ratio of judgment of Hon'ble Rajasthan High Court is squarely applicable to the facts of the case, that as per para 4 of the Notification, every manufacturer who has been granted permission under para 2 of this Notification to operate under this special procedure, is required to make an application in a prescribed format specified in Appendix-II, to the Jurisdictional Superintendent for permission to remove the SS Pattas/Pattis during the ensuing month declaring the number of Cold Rolling Machines installed and employed the rate of duty per month per machine prescribed by the Government, and the total sum payable and prior to filing of the application, the amount of duty is required to be paid, that from this, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the such Notification, subject to such limitations and conditions including, those relating to interest or penalty, as may be specified in such Notification. Under Rule 15(1) of the Central Excise Rules, 2001, the Central Government has issued Notification No. 34/2001-C.E., dated 28-6-2001 by which the compounding scheme for payment of duty on Stainless Steel Pattas/Pattis and Aluminium Circles has been prescribed. The first para of the Notification is as under :- "In exercise of the powers conferred by Rule 15 of the Central Excise (No. 2) Rules, 2001, the Central Government hereby specifies the excisable goods viz. Stainless Steel Pattas/Pattis , falling under Chapter 72, or aluminium circles falling under Chapter 76 of the First Schedule to the Central Excise Tariff Act, 1985, subjected to the process of cold rolling with the aid of cold rolling Machines in respect of which an assessee shall have an option to pay the duty of excise on the basis of cold rolling Machines installed for cold rolling of these goods and fixes the following rate of duty per cold rolling Machines, per month :- (i) Stainless Steel Pattas/Pattis fifteen thousand rupees xxxxxxxxxxxxxxxxx Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the permission to operate under the compounded levy scheme and starting the operation under this scheme on the basis of maximum number of machines declared, the manufacturer dismantles some machines in a particular month, for three months following the month in which the machines had been dismantled, he will have to pay duty on the basis of the maximum number of machines declared earlier. The appellant plead that the provisions of Notification No. 34/2001-C.E. (N.T.), dated 28-6-01 are identical to the special procedure prescribed under Rule 96ZA to 96ZGG and, therefore, the ratio of Hon'ble Rajasthan High Court judgment in the case of CCE, Jaipur-II v. Jupiter Industries (supra) which is with regard to Rule 96ZA to 96ZC is applicable to these cases also. 4. During the period prior to 28-6-01 Rule 96ZA to 96ZGG prescribed a special procedure (compounding scheme) for discharge of duty liability by the manufacturers of Stainless Steel Pattas/Pattis and aluminium circles. On going through the compounding scheme prescribed under Rule 96ZA to 96ZGG of the Central Excise Rules, 1944, as it existed during the period prior to 28-6-2001 and the compounding scheme prescribed under Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maximum number of machines installed during the preceding three months. However, while interpreting these provisions of Rule 96ZA to 96ZGG of the Central Excise Rules, 1944, Hon'ble Rajasthan High Court in the case of CCE, Jaipur-II v. Jupiter Industries (supra) held that no duty would be payable in respect of the dismantled machines. In this regard para 23, 24 and 25 of the judgment are reproduced below :- "23. It goes without saying that, if in any particular month, no machine is operated and no production had taken place, there cannot be any levy of excise Duty. The manufacture of goods is condition precedent for charging of excise duty without which no levy can be made. Therefore, the rule cannot be made to go beyond the scope of charging provision, on the undisputed premises that no production had taken place from the cold rolling machine which has been removed on 29th May, 1998. In other words, no production has been taken place in respect of cold rolling machine which ceased to operate before the first July, 1996, no review could have been allowed in respect of estimated production in that machine. This is the simple logic which prevailed within the Tribunal and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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