2018 (10) TMI 80 – CESTAT NEW DELHI – TMI – Refund of excise duty paid – Compound levy scheme for SS Patta/ Patti – abatement on pro-rata basis – refund claimed on the ground that they have paid the excise duty for the entire month of November 2016and February 2017 whereas the cold rolling machines operating during those months were dismantled – refund was rejected on the ground that the appellant have not opted for the first time under the compounded levy scheme in both these months and as such the conditions of the impugned notification remains unfulfilled.
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Whether the refund claim of the proportionate Central excise duty deposited for the non working period of newly added machines is admissible to appellant, or otherwise?
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Held 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 for duty deposited for the non working period
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f Jupiter Industries [2006 (4) TMI 164 – HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] squarely applies to 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 is squarely applicable in the instant case where the appellant had paid the duty for the months of November to February despite that all cold rolling machines were not operating for certain no. of days, during the month of November 2016 to February 2017.
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The appellant is entitled for the proportionate refund of duty for the days when
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tled. It was mentioned that two no. of machines got dismantled w.e.f. 23.11.2016 to 30.11.2016 and one machine got dismantled and the non operating period thereon was 01.02.2017 to 14.02.2017. 3. The said refund for proportionate excise duty pertaining to the said period was rejected vide the order of original adjudicating authority bearing no. 2090 dated 30.05.2017, on the ground that the appellant have not opted for the first time under the compounded levy scheme in both these months and as such the conditions of the impugned notification remains unfulfilled. The facility of abatement on pro rata basis is therefore not available to the appellant. Being aggrieved an appeal was filed the same has been rejected vide the order under challenge resultantly the present appeal. 4. I have heard both the parties. It is impressed upon on behalf of the appellant that the procedure contained in notification 17/2007-CE dated 01.03.2007 prescribes the duty demand on no. of cold rolling machines man
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of newly added machines is admissible to appellant, or otherwise. For the purpose, the impugned notification is relevant. The same reads as follows: (1) A manufacturer whose application has been granted under paragraph 2 shall pay a sum calculated at the rate specified in this notification, subject to the conditions herein laid down, and such payment shall be in full discharged of his liability for duty leviable on his production of such cold re-rolled stainless pattas/pattis, or aluminum circles during the period for which the said sum has been paid: Provided further that when a manufacturer makes an application for the first time under paragraph 2 for availing of the procedure contained in this notification, the duty liability for the month in which the application is granted shall be calculated on the pro-rata basis of the total number of days in that month and the number of days remaining in the month from the date of such grant:. And para 6 of Notification No. 17/2007-CE dated 01
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issued under the provisions of Rules 15 of Central Excise Rules, 2002. Said rule provides for special procedure for payment of duty on the basis of such factors as may be relevant to production of such goods. This notification gives an option to the manufacturer of SS Patta/ Patti which are subjected to the process of cold rolling, whereby assessee can pay excise duty on the basis of no. of cold rolling machines installed for cold rolling of those goods. 8. Since this notification is issued under Central Excise Rules the provision thereof cannot be construed in the manner which is against Central Excise Act. Rule 3 of Central excise Act 1994 says that the duty is leviable on the manufacture of the excisable goods. Hence, when no cold rolling machine was installed or any of the machine was not operational question of payment of duty including such non-operational/ non-installed machine shall not arise. Accordingly I find that the interpretation as taken by the adjudicating authorities b
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