2018 (8) TMI 546

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....Rule 15 of Central Excise rule, 2002 by way of Notification 17/07-CE dated 01/03/2007. They were granted permission under said scheme in respect of seven cold rolling machines installed in their factory. They argue that out of 7 machines installed during the months of January-June, 2011 only a few machines were operational. He further pointed out that 7 machines remained closed in the months of November, 2010- December, 2010. He argued that the appellant did not pay the Central Excise duty in respect of closed machines. He argued that they had intimated about the closure of machines in terms to Para 6 of Notification No. 17/07-CE. They argued that the term 'factory' is not being properly interpreted in the proceedings. He pointed out that t....

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....rolling machines installed during the preceding three months, notwithstanding the provisions of para 3(1) and 4(1) of the Notification No. 38/2001-C.E. (N.T.), dated 28-6-2001, the duty can be charged only on the basis of actual number of cold rolling machines installed and, therefore, if in a particular month, some cold rolling machines have been dismantled, in subsequent month duty in respect of the same cannot be charged. In view of the above discussion, we hold that the impugned order is not sustainable. The same is set aside. The appeals are allowed."  It is apparent that the said decision holds that if the machine is dismantled, then the duty liability under Notification 34/01-CE (NT) could not arise. In the instant case these m....

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....ent in liability of duty was being sought, was removed from factory on 29/05/1998. It was not the case of mere non use of machinery but of actual removal of machinery from the premises and thus facts are significantly different. This is further affirmed in para 24 of said decision wherein following has been observed:  "24. 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 i....