TMI Blog2019 (5) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, all the cold rolling machines of the appellant were not functional, one or the other thereof being dismantled. The only dispute is that according to the Department since the machine was dismantled in the mid of the month pro-rata benefit is available only to the assessee who has opted for the compounding scheme for the first time which admittedly is not the case of appellant. Whereas, according to the appellant, the Notification makes no such distinction. Perusal of Condition 3 proviso 2 of the Notification makes it clear that this proviso talks about the discharge of duty liability of the assessee for the month in which he has moved his application opting for the said compounding fee, as required under Rule 2 of the said Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, 2007 issued under Rule 15 of Central Excise Rules, 2002. The appellant filed a claim of refund of ₹ 1,16,910/- in respect of duty paid for the month of October 2016 to February 2017. The Department on the scrutiny of said refund claim observed that the appellant had deposited compound duty of ₹ 2,80,000/- @ ₹ 40,000/- per cold rolled patta/ patti machine for six machines used for the purpose for the month of October 2016 to February 2017. The Department formed the opinion that there is no provision in the said Notification for refund of duty paid for the non operative period of the machines during the month. Accordingly the refund claim was proposed to be rejected vide show cause notice No. 1307 dated 09 May, 2017. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive has impressed upon para 4.3 of the Order under challenge. It is submitted that the finding of Adjudicating Authority about appellant to not to be exercising the option of compounded levy scheme for the first time is very much in furtherance of condition number 3, second proviso of the Notification No. 17/2007-CE dated 01 March, 2007. It is submitted that the benefit of pro-rata payment is available only for those assesses who are opting for compounded levy scheme for the first time. Departmental Representative has also impressed upon that Commissioner(Appeals) has clearly distinguished the facts of the present case from that of the Jupiter Industries (supra) case as was decided by the High Court of Rajasthan impressing upon the justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The sum payable under sub-paragraph (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 paragraph 2 is made. 5.1 Perusal thereof makes it clear that this proviso talks about the discharge of duty liability of the assessee for the month in which he has moved his application opting for the said compounding fee, as required under Rule 2 of the said Notification, and in such a circumstance, this proviso says that the payment of duty shall be made as calculated on pro-rata basis. This ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o August also does not call for any interference. Consequently, the question referred to us is answered affirmative that is to say in favour of the assessee and against the revenue There shall be no orders as to costs . 9. Though the emphasis has also been laid on para 4.4 sub-para 2 of the Order under challenge where this decision in Jupiter Industries vs. CCE, Jaipur (supra) case has been distinguished by Commissioner(Appeals) but the perusal of said para shows that irrespective of difference of fact about the payment of duty for three successive months as was made by the assessee in Jupiter Industries vs. CCE, Jaipur (supra) and the payment of duty with respect to all number of rolling machines as made by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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