TMI Blog2022 (8) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of M/S PARADISE STEELS PVT. LTD. VERSUS CCE CGST, JAIPUR [ 2018 (9) TMI 1480 - CESTAT NEW DELHI] , where it was held that since this is the case of one machine being inoperative for part of the month after payment of Central Excise duty, has not produced any goods and therefore, duty cannot be charged under compounded levy for the whole month. The appellant is entitled to refund for the period, the machines remained un-operative for the part of the month of pro rata basis - revenue is directed to grant the refund of the amount of Rs. 55,483/- from the date of deposit till the date of refund, with interest as per Rules - Appeal allowed. - Excise Appeal No. 51862 of 2018 (SM) - FINAL ORDER NO. 50755/2022 - Dated:- 25-8- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of abatement on pro rata basis is not available to them under the said Notification. 4. Being aggrieved, the appellant-assessee preferred appeal before the Commissioner (Appeals) inter alia relying on the ruling of Hon ble Rajasthan High Court in the case of CCE Jaipur vs. Jupiter Industries- 2006 (206) E.L.T. 1195 (Raj.), wherein under similar circumstances, the Hon ble High Court framed the following question for consideration; whether the CEGAT can allow refund under Section 11B of Central Excise Act, when it was specifically not allowed by sub Rule 2 of Rule 96B of Central Excise Rules, 1944. The Hon ble High Court was pleased to dismiss the appeal of revenue and answer the question in favour of the assessee observing as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Duty. In given circumstances, such excess collection of Duty may be refused to be refunded, if it results in unjust enrichment because passing of duty to buyers of goods. It depends on furnishing satisfactory proof by 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. 25. We are therefore, also of the opinion that the direction of the Tribunal to refund excess amount received in respect of machine which had ceased to function during the months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inoperative for part of the month after payment of Central Excise duty, has not produced any goods and therefore, duty cannot be charged under compounded levy for the whole month. The appeal was allowed with consequential benefits. 6. Learned AR for revenue relies on the impugned order, it is further urged that the refund of pro rata duty deposited for the non working period of the machine from 06/10/2015 to 31/10/2015 is not admissible for the reason that in terms of conditions of para 3 6 of the Notification No. 17/2007-CE dated 01.03.2007, the facility of abatement on pro rata basis is available only to the manufacturers who commence production for the first time or who discontinues production for a continuous period of no less than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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