Bisen Engineering (P) Ltd. Versus CGST & CC, Bhopal
Central Excise
2018 (2) TMI 1246 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 5-2-2018
Appeal No. E/51810/2017-SM – Final Order No. 50548/2018
Central Excise
Hon'ble Mr. Ashok Jindal, Member ( Judicial )
Shri Sandeep Mukherjee, C.A. – for the appellant
Shri K. Poddar, D.R. – for the respondent
ORDER
Per Ashok Jindal
The appellant is in appeal against the impugned order wherein the refund claim of duty paid during the course of investigation along with interest has been denied to the appellant following the decision of this Tribunal in appellant's own case wherein penalty against the appellant has been dropped by this Tribunal vide Final Order No. 52203/2015 dated 27th May 2015.
2. The facts of the case are that an investigation was conducted at the end of the appellant and it was found that the appellant is required to pay duty which the appellant paid along with interest during investigation itsel
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iated in terms of Section 11A(2B) of the Central Excise Act, 1944 and no show cause notice was required to be issued. Thereafter, the appellant has filed this refund claim. The refund claim was rejected by the authorities below on the ground that this Tribunal has considered the issue of imposition of penalty and observed that confirmation of the demand along with interest is to be appropriated in terms of Section 11A (2B) of the Act. Therefore, refund claim are not entertainable. Against the said order, the appellant is before me.
3. The ld. Consultant appearing on behalf of the appellant submits that as the show cause notice is barred by limitation. Therefore, whatever amount they have paid during the course of investigation is pre-deposit is required to be refunded. In support of this contention, he relied on the following decisions:
(i) Nandeshwari Packaging Ltd. – 2008 (229) ELT 441 (Tri.-Ahmd.);
(ii) Birla Ericsson Optical Ltd. – 2007 (212) ELT 213 (Tri.-Del.);
(iii) Parle
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ant before issue of show cause notice, the appellant should get the benefit of provisions of Section 11A (2B) of the Central Excise Act, 1944, according to which, there was no requirement of issuance of show cause notice, once the duty along with interest has been paid. Further, since the ingredients mentioned in the proviso to Section 11A and Section 11AC of the Central Excise Act are absent in the present case, the question of imposition of penalty does not arise.”
7. On going through the said findings of this Tribunal, this Tribunal categorically held that the show cause notice was not required to be issued and the amount already paid by the appellant during the course of investigation along with interest was required to be appropriated in terms of Section 11A(2B)of the Central Excise Act, 1944. Although, it was also held that show cause notice is barred by limitation but the findings of this Tribunal has not been challenged by the appellant before the higher forum and the same has
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