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TMI Blog2019 (5) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant filed a claim of refund of Rs. 1,16,910/- in respect of duty paid for the month of October 2016 to February 2017. The Department on the scrutiny of said refund claim observed that the appellant had deposited compound duty of Rs. 2,80,000/- @ Rs. 40,000/- per cold rolled patta/ patti machine for six machines used for the purpose for the month of October 2016 to February 2017. The Department formed the opinion that there is no provision in the said Notification for refund of duty paid for the non operative period of the machines during the month. Accordingly the refund claim was proposed to be rejected vide show cause notice No. 1307 dated 09 May, 2017. The original Adjudicating Authority vide the Order No. 109/2017-R dated 30 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about appellant to not to be exercising the option of compounded levy scheme for the first time is very much in furtherance of condition number 3, second proviso of the Notification No. 17/2007-CE dated 01 March, 2007. It is submitted that the benefit of pro-rata payment is available only for those assesses who are opting for compounded levy scheme for the first time. Departmental Representative has also impressed upon that Commissioner(Appeals) has clearly distinguished the facts of the present case from that of the Jupiter Industries (supra) case as was decided by the High Court of Rajasthan impressing upon the justification of the Order under challenge. The Appeal is accordingly prayed to be dismissed. 5. After hearing both the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on behalf of such manufacturer in one or more premises at any time during three calendar months immediately preceding the calendar month in which the application under paragraph 2 is made." 5.1 Perusal thereof makes it clear that this proviso talks about the discharge of duty liability of the assessee for the month in which he has moved his application opting for the said compounding fee, as required under Rule 2 of the said Notification, and in such a circumstance, this proviso says that the payment of duty shall be made as calculated on pro-rata basis. This observation makes it clear that the second proviso is not applicable in case where the benefit of compounding scheme is to be availed by the assessee in the form of a refund when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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, 1996, no review could have been allowed in respect of estimated production in that machine. This is the simple logic which prevailed within the Tribunal and in our opinion rightly. No contrary view can be taken from the reading of the Rules also. 6 EX/51414 of 2018 We are, therefore, of the opinion that the conclusion reached by the Tribunal was valid. 24. Moreover, when there is no production of any arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on para 4.4 sub-para 2 of the Order under challenge where this decision in Jupiter Industries vs. CCE, Jaipur (supra) case has been distinguished by Commissioner(Appeals) but the perusal of said para shows that irrespective of difference of fact about the payment of duty for three successive months as was made by the assessee in Jupiter Industries vs. CCE, Jaipur (supra) and the payment of duty with respect to all number of rolling machines as made by the appellant under the compounding scheme in the present case, the crux of the matter in both the cases remains is as to whether the duty has to be paid for the period during which there has been no manufacture by any of the machines of the appellant. Hence, the distinction of two decisions b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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