TaxTMI 
TaxTMI 
2018 (9) TMI 1480
X X X X Extracts X X X X
X X X X Extracts X X X X
....ound levy scheme for stainless steel Patta Patti prescribed vide Notification No. 17/2007-CE dated 01/03/2007 issued under Rule 15 of the Central Excise Rules, 2002. It is a matter of record that as per the conditions of the above-mentioned Notification No. 17/2007-CE dated 01/03/2007, the appellant has deposited compounded central excise duty of Rs. 3,60,000/- @ Rs. 40,000/- per cold rolled Patta Patti machine for the 9 machines which were installed in the factory premises of the appellant. The assessee/appellant vide his letter dated 02/05/2016 informed the Office of Superintendent, Central Excise Range, Jodhpur that one of the cold rolled Patta Patti machine will not be functional for the rest of the month. The Jurisdictional Range Offic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ining inoperative for a part of month or days. It was concluded that the facility of abatement in the compounded monthly duty on pro-rata basis for the working days is not available under the scheme. It has been the argument of the learned Advocate appearing for the appellant that the stand taken by the Department for rejected their refund claims is not legally sustainable. It has been submitted that Section 3 of the Central Excise Act, 1944 provides that duty of Central Excise is leviable on the manufacture of excisable goods and the Department can only collect Central excise duty on the machines manufacturing excisable goods. It is argued that even under the compounded levy scheme of Central excise duty, the machines which are non-functio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as already deposited for all the 9 machines and therefore it resulted in excess payment of amount of Rs. 37,419/-. The appellant have filed the refund of the same which was got rejected by the Assistant Commissioner on the ground that Notification No. 17/2007-CE dated 01/03/2007 does not have any provision for refund of duty deposited in advance once the assessee have started availing the assessment of duty under the compounded levy scheme. 6. The matter is no longer res-integra as it has already been decided in the case of Jupiter Industries vs. CCE, Jaipur (supra) and in the case of ACME Industries vs. CCE, Jaipur - II - 2011 (269) E.L.T. 523 (Tri. - Del.). 7. The relevant extract of the relevant paras of Hon'ble Rajasthan High Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....und is a consequence of recovery of duty which is not leviable under the provisions of taxing statute or of excess 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 t....