TMI Blog2006 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... vy 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 rightly. No contrary view can be taken from the reading of the Rules also. We are, therefore, of the opinion that the conclusion reached by the Tribunal was valid. Moreover, when there is no production of any articles in relation to the machine which was not in existence, the question of passing on duty to consumers of existing goods can arise so as to require the invocation of principle of unjust enrichment to deny refund. Therefore, there is no justification for taking the view that since the tax has been paid under the special provision it is not subject to refund. Refund is a consequence of recovery of duty which is not leviable under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty as envisaged thereunder. The Chapter E-VI of the Rules of 1944 contained the provisions from 96ZA to 96ZGG. This special procedure can be availed by the assessee in lieu of the provisions contained in the rules elsewhere for the period in respect of which the application is granted by the Commissioner. 5. The application made by the assessee under Rule 96ZA had been granted by the Commissioner and the assessee was availing the special procedure for payment of duty as per the said procedure for the period, the permission was granted, which has not expired. The assessee was permitted to avail the special procedure for payment of duty. 6. Under Chapter 96ZB, the duty is to be determined at the rate fixed per month or per year for each cold roiling machine as notified by the Central Government in this regard. Such rate is to be determined having regard to the average production of the stainless pattas/patties falling under Chapter 72 of the Schedule of Central Excise Tariff Act, 1985 per month or per year and other relevant considerations by the Central Government and as by notification in the official gazette such rates were determined from time to time. 7. One of the two cold rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smantled and production of that machine is discontinued and there is no bar also contained in the special procedure as per rules or in Section 11B prohibiting refund of excess duty paid by an assessee working under the Special Procedure Rules. The Tribunal was of the opinion that since in the present case, there is no dispute that the machine was dismantled on 29-5-1998 and found that despite the duty was ordered to be paid in respect of the dismantled machine for 3 months i.e. June 98 to August 98, this payment was clearly in excess of the sum payable under Compounded Levy Scheme. That amount is refundable in terms of Section 11B of the Central Excise Act. The Lower Authorities were in error in holding that the refund was not permissible in terms of Rules relating to Special Levy. Therefore, the orders denying the refund are required to be set aside. 12. Against this order of the Tribunal, the Revenue has preferred an application under Section 35H seeking reference of the question of law arising from the order of the Tribunal and the aforesaid question was directed to be referred for decision by this Court as noticed by us above. 13. We have heard the rival contentions. The Rule 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure of manufactured articles, as per the special procedure is determined on the basis of estimated manufacture per machine and accordingly, levy is also payable on estimated manufactured articles per machine at the prescribed rate for such manufactured articles per machine for a given period but the rate is applicable to the production of article by the machine concerned. It is not de-linked. Sub-rule (2) on which the reliance has been placed by the Revenue to claim that excise duty is leviable in respect of cold rolling machines which was not in existence during the period by dint of rules reads as under :- (2) The sum payable under sub-rule (1) shall be calculated by application of such 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 Rule 96ZC is made. 16. Apparently sub-rule (2) of Rule 96B cannot be lead independent by sub-rule (1) of Rule 96ZB. Thus read in all cases whatever may be situation, the tax is to be levied on the basis of maximum number of cold rolling machines installed and op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivering at the time and place of removal of excisable articles. The excise duty is payable on the removal of goods from the place of manufacture or from the place where they are permitted to be stored at the rate specified for levy of excise duty at any particular article in terms of relevant provisions of law. In other words, the levy of duty on removal of goods to be measured on the quantity of goods removed each time at a rate applicable to such goods at the relevant date and in this process, the entire manufactured goods so removed from the place of manufacture or the permitted store house is subjected to the prescribed rate of duty on the basis of quantification of measure by applying the rate to the full quantity as such. 18. Section E-VI of rules makes a deviation in terms by adopting the levy at a rate on estimated production per machine per month. Special provision for discharging the obligation to the duty is made applicable only with effect from the date the permission is granted. 19. Apparently, the cases in which the plant and machinery is installed prior to making of an application provided under Chapter E-VI, Rule 96AC makes a provision in respect of goods that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the officer before removing the machine itself. 22. The application is in respect of removal of the manufactured articles from the premises whereas intimation only is needed in respect of change in machines installed in the factory premises. Apparently, the Assistant Commissioner as well as the Commissioner (Appeals) were under impression that application required under Rule 96AC relates to removal of cold rolling machines whereas there is no such requirement of making such application in that regard. 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 produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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