TMI Blog2005 (9) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... 28" of 11" x 28" and paid duty at the rate of Rs. 7500/- per month during the period from 1-6-1998 to 31-5-1999 for that cold rolling machine. The assessee gave an intimation on 6-11-1998 for purchase of another cold rolling machine of the roller length of 30" and diameter of 12" alongwith complete fittings and accessories and thereafter intimated about the commencement of the production of aluminium circles by their letter dated 9-4-1999. According to the Department in view of the addition of cold rolling machine, the assessee was required to pay duty of Rs. 15,000/- i.e., at the rate of Rs. 7,500/- per each machine per month. But, the assessee paid duty of Rs. 7,500/- only for one machine in April and May, 1999. The assessee submitted another application under Rule 96ZA to avail of that special procedure on 17-6-1999 for the period 1-6-1999 to 31-5-1999 declaring therein roller size of the two cold rolling machines as 12" diameter and 30" length, and 11" diameter and 28" length. Thereupon, the Central Excise Officers visited the factory premises of the assessee on 27-7-1999 and found on verification that there were two cold rolling machines installed in the factory of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable only in respect of one machine. He submitted that from 9-4-1999, the machine which was earlier used for both cold rolling and hot rolling, was used only for hot rolling and, therefore, no duty was payable in respect of that machine. The learned Counsel further contended that when one of the two machines was not used as cold rolling machine, it should have been treated as idle machine and, therefore, no duty could have been charged in respect thereof, in view of the two circulars of the Board issued on 25-7-1997 viz. Circular Nos. 325/41/97-CX. and 326/42/97-CX. of even date, copies of which were placed on record. Reliance was placed on Paragraph Six of the Circular No. 325 and Paragraph 18 of the Circular No. 326 in support of the contention that when the old machine was not in fact being used for cold rolling, it should have been treated as idle and no duty could have been charged thereon. 4.1 In support of his contentions, the learned Counsel for the appellant, placed reliance on the decision of this Tribunal in Mandovi Metals Private Ltd. v. Commissioner of Central Excise, Goa reported in 2004 (175) E.L.T. 409 (Delhi) which was rendered in the context of the said Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department further contended that the two circulars on which reliance was sought to be placed were wholly inapplicable to this case because they were issued in the context of production capacity in respect of which separate provisions were made under Rules 96ZO and 96ZP. She pointed out that the assessee did not revert to the normal procedure as was contemplated under Rule 96ZGG. According to her, there was no valid ground for interference with the impugned order of the appellate Commissioner. 6. There is no dispute about the fact that the assessee had availed of the special procedure under Rule 96ZA by making an application in which the assessee had declared cold rolling machine of the roller size 28" with a diameter of 11". In respect of that machine the assessee paid central excise duty @ Rs. 7500/- per month during the period from 1-6-1998 to 31-5-1999. It is also an admitted fact that the assessee purchased another cold rolling machine of the roller length of 30" with a diameter of 12" on 8-10-1998 on which production of aluminium circles was started from 8-4-1999. 7. Under Section 3A of the Central Excise Act, 1944, the Central Government is empowered to charge excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer in writing of any proposed change in the number of cold rolling machines installed by him or on his behalf, and obtain the written approval of such officer before making any such change. It will be noticed from the scheme of the rules falling in Section E-VI that separate provisions are made for cold rolling machines and the assessee who avails of the special procedure is required to declare the cold rolling machines installed by such manufacturer and the duty is to be calculated on the maximum number of such cold rolling machines. The assessee paid the central excise duty @ Rs. 7500/- per month in respect of the old machine all throughout the period for which it availed of the special procedure. Having declared the machine as a cold rolling machine and used it as such, and having paid duty under the special provisions in respect of such machine, it was not open for the assessee to contend that the cold rolling machine had ceased to be such machine just because it was allegedly used as hot rolling machine. The duty liability arose when the special procedure was availed of and the said machine of the roller length of 28" and a diameter of 11" was installed as col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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