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TMI Blog2024 (9) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and conditions of the notification during the period of forced closure of the units. The nonproduction of excisable goods during these two months can more appropriately termed as ceasing to work rather than failure to comply with the provisions.' In view of the above judgment, the facts of the same are identical to the facts of the present case, we are of the view that the appellant cannot be fastened with the duty liability during the closure of the factory even though for the 2 months as the same was beyond their control. The demand is not sustainable. Accordingly, the impugned order is set aside - Appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri M. K. Kothari , Consultant appeared for the Appellant Shri Himanshu P Shrimali , Superintendent ( AR ) appeared for the Respondent ORDER RAMESH NAIR The brief facts of this case are that the appellant were working under the compounded of levy scheme for payment of excise duty. During the period of March-2015 and April-2015 due to non receipt of the consent order from Gujarat Pollution Control Board for restarting the production again, they were compelled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, we find that it is not disputed that the closure of the factory was not on the choice of the appellant whereas, they were compelled to keep the factory closed as per the direction of the Gujarat Pollution Control Board. Therefore, closing of the production was beyond the control of the appellant. In the identical facts, this Tribunal has dropped the demand of Excise duty for the period when the assessee was forced to close their factory by their state authority. The said judgment in the case of Sarthi Rubber Industries (P). Ltd. is reproduced below:- 6. We have heard both the sides and perused the appeal records. The relevant legal provisions of paras 2 and 7 of the Notification No. 17/2007-C.E. are as below :- 2. Application to avail special procedure. - (1) The manufacturer shall make an application in the form specified in Appendix- I to this notification to the Superintendent of Central Excise, as the case may be, for this purpose and the Superintendent, may grant permission for the period in respect of w hich the application has been made. (2) The application shall be made so as to cover a period of not less than twelv e consecutive calendar months, but permission may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee/appellant has opted out of the special scheme. Neither it is recorded that any of the deliberate action on the part of the assessee/appellant will indicate that they are not continuing in the said scheme. The central point of dispute is that due to forced closure of the unit by the State authorities, the assessee/appellant could not manufacture or operate their machinery during March and April, 2013. Such forced closure cannot be termed as a failure on the part of the assessee/appellant to avail the special procedure. The permission granted to the assessee/appellant to avail the special procedure and all other circumstances which make them eligible for such concession is existing all along. The closure of units admittedly, beyond the control of the assessee/appellant, is not to be treated as a failure to comply with the provisions and conditions of the notification during the period of forced closure of the units. The non-production of excisable goods during these two months can more appropriately termed as ceasing to work rather than failure to comply with the provisions. 8. We note that Hon ble Rajasthan High Court in the case of CCE, Jaipur- II v. Jupiter Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoke the provision of para 7 of the said notification and should have given his finding. In case he is not inclined to allow the special procedure to the assessee/appellant, reasons for the same should have been given. No such finding has been recorded by the Original Authority. 10. The issue can be looked into in another angle also. The show cause notices issued to the assessees/appellants are to demand differential duty for the period March to August, 2013. For the period March and April, 2013, admittedly, the assessee/appellant did not pay any duty. The rate of excise duty fixed per cold rolling machine is Rs. 40,000 per month + cess applicable. The duty demand for the whole period emanated because of assessee s non-payment of duty for March, 2013 and April, 2013 because of closure. Such closure was considered as failure to follow the special procedure. Suppose we consider a situation where even during such closure the assessee/appellant discharged the duty payable as per the special procedure, based on number of cold rolling machine, then the question of failure would not have arisen and the demand for subsequent 4 months also would not have also arisen. We have perused one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts recorded above, there is no case for denying the provisions of special scheme to the assessee/appellant. 12. In view of the above discussion and analysis, we find that the impugned orders confirming the differential duty are not legally sustainable. Accordingly, we allow these appeals filed by assessee/appellant by setting aside the impugned orders. The appeals filed by the Revenue for imposition of penalty are dismissed as the impugned orders are found to be unsustainable. In view of the above judgment, the facts of the same are identical to the facts of the present case, we are of the view that the appellant cannot be fastened with the duty liability during the closure of the factory even though for the 2 months as the same was beyond their control. As regard the decision relied upon by the revenue in the case of Sethi Metal Industries, the fact of the said case is different from the fact of the present caseas well as the Division Bench judgment of Sarthi Rubber Industries (P). Ltd. 5. As per our above discussion and finding, we are of the view that the demand is not sustainable. Accordingly, the impugned order is set aside. Appeal is allowed. ( Pronounced in the open c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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