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TMI Blog2018 (8) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... otification prescribed on the condition in respect to new factory/close factories resuming number of factories ceasing to work or reverting to normal procedure. There is no procedure in the notification or the scheme regarding non use of installed machines - Having chosen the option of availing the concession on the basis of number of machines installed, the appellants cannot now claim that the benefit of machines which they have declared to have not been used during certain period. Appeal dismissed - decided against appellant. - E/12074-12076/2014-DB - A/11629-11631/2018 - Dated:- 1-8-2018 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) For the appellant : Shri D.K. Trivedi, Advocate For the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 (348) ELT (720) (Tri.- Del.) which was affirmed by Hon‟ble High Court of Rajasthan has reported in 2018 360 E.L.T. 477. 3. Ld. AR relied on the impugned order. He also relied on the decision of Tribunal in the case of Sethi Metal Industries 2018 (294) ELT (603). He also asserts that the decisions relied upon by appellant which pertain to erstwhile Rule 96 ZA to 96ZGG of Central Excise Rule, 1944. 4. We have gone through rival submissions. We find that the decision relied upon the very appellant in the case of Acme Industries (Supra) does not help the cause of the appellant. In para 6 of the said decision following has been observed: 6. Moreover we also find that para 1 of the Notification No. 34/2001-C.E. (N.T.) talks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said machines under Compounded Levy Scheme. In para 23 of the decision in the case of Jupiter Industries is as follows: 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, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the manufacturer that such duty has been passed on to buyers. However, in case like the present where goods have not at all been manufactured and yet on estimated basis of imaginary production Duty has been demanded, the question of passing of such duty collected from the assessee to buyers of the non-existence production cannot arise. 4.2 In the instant case notification No. 17/07, gives an option of concessional rates of duty subject to certain conditions. The opening para of the said notification clearly prescribes that the assessee shall have an option to pay duty of excise on the cold rolling machines installed for cold rolling. The two key words in the sentence are option and installed . It is also to be noted that the en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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