Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE STUDY/2011-12/05
04 May 2011

Payment of duty on CR Machines under Compound Levy Scheme when Machine not operated
 
PJ/Case Study/2011-12/05
 

CASE STUDY

Prepared By:
CA Pradeep Jain and
Sukhvinder Kaur, LLB [FYIC]

Introduction: -
 
Under the Compound levy scheme introduced for Stainless Steel Patta/patti units under Notification No. 17/2007-CE dated 01.03.2007 a fixed amount is required to be paid in lieu of standard rate of duty. The duty is payable on the production capacity rather than on clearance of finished product. Thus, an assessee operating under compound levy scheme has to pay the duty on the number of Cold Rolling machines installed in his factory and that too in advance for the subsequent month. However, in case a machine in dismantled during a month, then for the remaining period of the month the duty will still be payable or the assessee can claim refund of the said duty. Also, whether the principle of unjust enrichment will be applicable to such refund of duty claimed by the assessee? These issues were raised in the case under study.  

M/s Paradise Steels (P) Ltd v/s Deputy Commissioner, Central Excise, Jodhpur
[Order-In-Appeal no. 58(CB)CE/JPR-II/2011, dated: 16.03.2011]

 

Brief facts of the case: -
 
-           Appellant are engaged in the manufacture of Stainless Steel Patta/Patti falling under Chapter 72. Appellant was working under the special procedure for compound levy scheme prescribed vide Notification No. 17/2007-CE dated 01.03.2007.
 
-           Appellant deposited Rs. 150000/- for the whole month of Mat, 2010 in respect of 5 cold rolling machines but two machine was reduced from 18.05.2010 under intimation and permission of Range Superintendent.
 
-           Accordingly, appellant applied for refund of Rs. 27097/- for the period from 18.05.2010 to 31.05.2010.
 
-           The Adjudicating Authority rejected the refund application on the ground of merit as well as on the ground of unjust enrichment.
 
-         Hence, appellants have filed appeals before the Commissioner (Appeals). 

Appellant’s Contentions: -
 
The appellant submitted before the Commissioner (Appeals) as under:
 
1.         It was submitted that the Adjudicating Authority had simply passed the order without relying upon the decisions placed by the appellant. The learned Assistant Commissioner has not distinguished the decisions citied by the appellant. He has not even discussed the verdicts quoted by the appellant in his reply and passed the simple order. Such a non speaking order is liable to be set aside. Reliance was placed on judgment in Commissioner of Central Excise, Bangalore versus Srikumar Agencies [2008 (232) E.L.T. 577 (S.C.)]  wherein it was held that an order passed without considering the submissions of the appellant is a non speaking order and a non speaking order is not legally viable in the eyes of law. Reliance was also placed on Wipro Computers Ltd. vs Commissioner of Customs, Chennai [2001 (135) ELT 450 (Tri.-Chennai)]; Commissioner of C.Ex.& Cus., Vapi vs Vishesh Dhatu Industries [2008 (222) ELT 337 (Bom.)].
 
2. It was submitted that the impugned order is denying the refund on the ground that duty to be paid Rs. 30000/- per machine per month for all cold rolling machines operated during the said month, irrespective to the fact that the cold rolling was operated from first day or from the middle of the month. In this regard it is submitted that the duty cannot be levied on the machine when it is not in operation or production has not been made. Further to support their contention reliance was placed on judgment in case of JUPITER INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR {Final order dated 08.08.2001 [2001 (137) E.L.T. 1018]} wherein the Tribunal has upheld that the refund to be paid for the period during which the machine was not in operation. The Tribunal was of the opinion that in case of discontinuance of the machine there is no bar as per rules or in section 11B prohibiting the refund of excess duty paid by an assessee working under the Special procedure rules. The verdict of same is as under:-
 
 Production capacity based duty - Compounded levy - Cold rolling machine - Payment of duty after dismantling of machine and discontinuance of production not contemplated by Rules 96ZB and 96ZB(2) of Central Excise Rules, 1944. - Sub-rule (2) of Rule 96ZB laid down the method of calculation of sum payable. These rules, in no way stipulate that any sum at the compounded rate is payable towards duty for a machine which is not in existence with the manufacturer. Nor do they say that no refund claim can be made with regard to excess payment made. Central Excise refund claims are made in terms of Section 11B of the Central Excise Act. That section laid down that any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector and that, if the Asstt. Collector is satisfied that all or any part of the duty of excise paid by the applicant is refundable, he make an order accordingly. It is clear from Rule 96ZA that Pattas/Patties manufacturers can opt for the special procedure. Rule 96ZB stipulates that duty liability can be discharged by payment of certain sum. Sub-Rule (2) of Rule 96ZB deals with calculation. None of these rules contemplate payment of duty after a machine has been dismantled and production of the machine discontinued. [para 4]
 
Refund of excess duty paid on the basis of production capacity - Special procedure rules for compounded levy of duty and Section 11B of Central Excise Act, 1944 do not bar refund of excess duty paid by assessee working under those Rules. [para 4]
 
The analysis of the decision makes it ample clear that no rules stipulates that any sum of duty is payable under the compounded rate for the machine which is not in existence with the manufacture. Nor these rules debar the right of refund on excess payment made neither contemplate payment of duty when machine been inoperative and production of the machine discontinued. The above decision is squarely applicable in instant case where the duty ordered to be paid in respect of inoperative machine which is clearly the excess of the sum payable under Compound levy scheme as there being no production from such machine. Thus the excess duty should be proportionately refunded. But impugned order-in-original has not discussed the submission of the appellant. Thus, the order in void abintio and non est.
 
3. The appellant further submitted that if the contention of the order that the refund not be allowed in case the machine was added on 11.11.2009 and there was not production for 10 days then it will be against the decision given by the Rajasthan High Court in the case of Collector of Central Excise, Jaipur-II vs. Jupiter Industries [2006 (206)ELT 1195 (Raj.)] where in the Court held that in “Production capacity based duty- Stainless steel plant- No duty is leviable for the period when machine is not installed/operated. Thus the duty is payable only for the period when the machine is installed and if no machine is operated and no production has taken place, there cannot be any levy of excise duty. The above decision was discussed in depth in the reply to show cause notice but the learned assistant commissioner has not considered the decision of High Court. As such, the refund for the period of non operation of machine should be allowed to us.
 
4. It was submitted that the impugned order is contending that there was no documentary evidence submitted by the appellant that the incidence of duty has not been transferred to any other person. In this respect it is submitted that the doctrine of unjust enrichment is applicable when there is production and the manufacturer has sold the finished goods. Hence, he can pass on the incidence of excise duty to the customer. But in instant case where there is no production, the question of passing on the burden of duty to consumers does not, therefore, arise. The same concept has been clarified by  Rajasthan High Court in the decision of Jupiter Industry cited supra which reads as follows:-
           
Refund- Unjust enrichment- Applicability of- when there is no production in relation to machine which is not in existence, there is no question of passing of duty to consumers and this principle is not applicable- Section 11B of Central Excise Act,1944”.
 
Thus the analysis of above decision makes it crystal clear that 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 does not arise. Therefore, there is no justification for taking the view that since the duty has been paid under the special provision it is not subject to refund.  Similarly, in instant case also, where goods have not been manufactured during the period on dispute and yet duty has been demanded and paid, the question of passing of such duty to buyers of the non-existence production cannot arise. Therefore the concept of unjust enrichment becomes inapplicable and refund cannot be denied.
 
Findings of the Commissioner (Appeals): -
 
The Commissioner (Appeal) held that it is an undisputed fact that the appellant was paying duty in advance under Compound levy scheme.
 
The Commissioner (Appeal) found force in the contention of the appellant that duty cannot be levied on the machine which is not in operation.
 
It was further found that in the case of Jupiter Industries [2006 (206) ELT 1195], the Rajasthan High Court had held that:
 
“Production capacity based duty – Stainless steel pattas – No duty is leviable for period when machine is not installed/operated – It is especially so as levy of excise duty cannot go beyond charging provision and manufacture of goods is a condition precedent – Chapter E-VI of erstwhile Central Excise Rules, 1944 – Erstwhile Section 3A of Central Excise Act, 1944.
 
Refund – Unjust enrichment – Applicability of – When there is no production in relation to machine which is not in existence, there is no question of passing of duty to consumers and this principle is not applicable 0 Section 11B of Central Excise Act, 1944.”
 
In the end, the Commissioner (Appeal) held that duty cannot be levied on the machine which is not in the operation and since there was no production so no question of passing the duty arises. Accordingly, impugned order is set aside.
 
Decision of the Commissioner(Appeals):-
 
Appeal allowed.
 
Conclusion:-
 
The Commissioner (Appeal) rightly held that when there is no manufacture of final product, then duty cannot be levied on the machine as duty liability arises on the manufacture of goods. Also, when there is no production, then there cannot be any clearance of goods to the buyer and thus, the principle of unjust enrichment will not apply. 

******
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com