TMI Blog2011 (5) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ction during the period from 1.9.00 to 7.9.00, the question of clearance of goods and payment of duty does not arise at all - Further, as no duty was paid on account of non-production of any goods, the question of recovery of the same from the customers does not arise - The impugned order is set aside and appeal allowed in favour of appellant. - E/1751/2009 - - - Dated:- 6-5-2011 - Mrs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod upto 11.9.00. The said refund claim was taken up for adjudication by Assistant Collector, who allowed the same but ordered for crediting it to Consumer Welfare Fund. On an appeal against the above order, the Commissioner(Appeals) allowed the appeal by observing as under: 4. I have carefully considered the facts on record and the submissions made by the appellants. I find that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was granted vide subsequent order dt.22.9.03. 4. Thereafter, fresh proceedings were initiated against the appellant by way of issuance of Show Cause Notice dt.18.11.03, on the ground that the refund of Rs.80,000/- (Rupees Eighty Thousands only) stand erroneously sanctioned/paid to the appellant is required to be recovered under Section 11A of Central Excise Act. The said Show Cause Notice stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the assessee by earlier order of Commissioner(Appeals), the subsequent grant of refund to the assessee was as a consequential relief in terms of Commissioner(Appeals) s order. It is also on record that the earlier order of the Commissioner(Appeals) was never put to challenge by Revenue before Tribunal and as such the same had attained finality. In these circumstances, it was not open t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant having started their factory on 7.9.00 and their Annual Production Capacity fixed w.e.f. 11.9.00 and their being no production during the period from 1.9.00 to 7.9.00, the question of clearance of goods and payment of duty does not arise at all. Further, as no duty was paid on account of non-production of any goods, the question of recovery of the same from the customers does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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