M/s. Rajshree Industries Versus CGST, C.C. & C.E. -Jodhpur-I
Central Excise
2018 (10) TMI 80 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 26-9-2018
E/51516 /2018-EX [SM] – 53040/2018
Central Excise
Ms. Rachna Gupta, Member (Judicial)
For the Appellant : None
For the Respondent : Mr. K. Poddar, (AR).
ORDER
PER: RACHNA GUPTA
The present appeal is against the order in appeal no.2144 dated 27.03.2018.
2. The appellants herein are engaged in manufacture of Stainless Steel patta /patti having a Central Excise Registration. Appellant is working under the special procedure for compound levy scheme for SS Patta/ Patti prescribed vide notification no. 17/2007 CE dated 01.03.2007 issued under Rule 15 of Central Excise Rules.
The appellant had filed a claim for refund for Rs. 43920/- in respect to duty paid for the month of November 2016 and February 2017, on the ground that they have paid the excise duty for the entire month of November 2016and February 2017
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ated 01.03.2007 prescribes the duty demand on no. of cold rolling machines manufacturing SS Patta/ Patti. It is alleged that the department had wrongly demanded duty on non operating machines the same has wrongly been confirmed. Decision of Hon'ble High Court of Rajasthan in the case of Collector of Central Excise Vs. Jupiter Industries [2006 (206) ELT 1195 (Raj.)] has been relied upon appeal is prayed to be allowed.
5. While rebutting these arguments ld. DR has justified the order. It is mentioned that even the authority as relied upon by the appellant has been clearly distinguished by the Commissioner Appeals holding that in the aforesaid judgment the appeal was allowed against duty payment for subsequent month only. But present is the case of refund of proportionate duty on non working/ operating machines from the monthly payment of duty.
6. After hearing both the parties considered opinion of mine is as follows:
The issue to be decided in this case is as to whether the refund cl
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month from the date of such grant:.
And para 6 of Notification No. 17/2007-CE dated 01.03.2007 reads as follows:
“(1) In the case of a manufacturer who commences production for the first time or who recommences production after having ceased production for a continuous period of not less than there months, and who has been permitted by the Assistant Commissioner or the Deputy Commissioner of Central Excise as the case may be, under paragraph 2 to avail of the procedure, the amount payable by him for the first month or part thereof, as the case may be, shall be provisionally calculated on the basis of his declaration of the maximum number of cold rolling machines that are or are likely to be installed by him or on his behalf during the such period”.
7. In the present case, I observe 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 f
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ot arise. Accordingly I find that the interpretation as taken by the adjudicating authorities below that,
“the appellant is already working under compounded levy scheme since long back and they have not opted for first time under the said scheme in the impugned demand i.e. November 2016 and February 2017” is opined not sustainable.
I draw my support from the decision of Jupiter Industries (supra) as cited by 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 further clarified that central excise ref
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