SNJ Sugars and Products Limited Versus CCT, Tirupati GST
Central Excise
2018 (10) TMI 469 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 5-10-2018
E/30496/2018 – A/31251/2018
Central Excise
Mr. P.K. Choudhary, Member (Judicial)
For the Appellant : Shri J. Shankar Raman, Advocate
For the Respondent : Shri Dass Thavanam, Superintendent /AR
ORDER
PER: MR. P.K. CHOUDHARY]
1. The facts of the case in brief are that the appellant herein is engaged in the manufacture of sugar, Molasses, Denature Spirit, classifiable under chapter heading 17 and 22 of the first schedule of Central Excise Tariff Act, 1985. This is the fourth round of litigation before this Tribunal. The appellant vide page No. 128 of the Appeal Paper Book have filed chronology of dates and events showing that the period of dispute is from July 2003 to December 2004. Ld. Advocate appearing on behalf of the appellant submits that the present dispute is the partial rejection of refund claim to an
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well settled legal position that there must be a show cause notice under section 11A of Central Excise Act, 1944 for recovery of erroneous refund at the time of filing an appeal before the Commissioner (Appeals), Vijayawada after review under section 35(E) of Central Excise Act, 1944. In support of his submission, Ld. Advocate referred to Board's Circular No. 423/56/98-CX, dated 22.09.1998 and also relied upon the following decisions:
a) CCE, Coimbatore vs. Pricol Ltd. [2015(320)ELT 703 (Mad.)]
b) Nestle India Ltd. vs. CCE, Goa [2009(240)ELT 426 (Tri.-Mumbai]
c) Golden Plast Rigid PVC Pipes vs. CCE, Trichy [2018(13)GSTL 321 (Tri.-Chennai)]
2. Ld. DR reiterates the findings of the Commissioner (Appeals) and also files a statement showing the chronological events which lead to the filing of instant refund claims. He further argued that there is no infirmity in the impugned order and cited the following decisions in support of his submissions:
a) Gujarat State Fertilisers & Chemi
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is no more resintegra as decided by the Tribunal in the case of Golden Plast Rigid PVC Pipes vs. CCE, Trichy (supra). The relevant paras are reproduced:
“5. Based on the investigations initiated by the department and the short-payment of duty pointed out, the appellant had paid up an amount of Rs. 3,82,431/- in the formal proceedings issued for recovery and appropriation of this amount by a show cause notice. The adjudicating authority dropped the proceedings. In consequence, the appellant filed refund claim seeking refund of the amount paid by them at the investigation stage. In the order dated 14-3-2007, the adjudicating authority found that while the refund claim has been filed beyond the stipulated period of one year, however as the entire amount was paid under protest, their claim is not hit by limitation. The adjudicating authority held that the refund claim is eligible for sanction on merits and sanctioned the amount of Rs. 3,82,431/-. Accordingly, in case the department felt
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cise Act or demands under Section 11A within the statutory time-limit as laid down.”
The SC in the case of CCE v. Re-Rolling Mills [reported in 1997 (94) E.L.T. 8 (S.C.)] has inter alia held as following.
“The Learned Counsel for the parties do not dispute that this appeal is covered by the decision of this Court in Union of India & Ors. v. Jain Shudh Vanaspati Ltd. & Anr. – 1996 (86) E.L.T. 460 (S.C.) = (1996) 10 SCC 320. In that case the Court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of the Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed”.
In this context the point to be stressed is that the Order passed u/s 35E(2) does not automatically result in the recovery of the refund. This has to be followed by SCN u/s 11A which should be issued within 6 months from the date of actual refund. Since time-limit for filling appeal u/s 35E(2)
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fully aware of the above Board circular which is also binding on them. Nonetheless, no show cause notice has been issued in the present case proposing recovery of the alleged “erroneously refunded amount”.
5.2 This aspect should have been taken note by the lower appellate authority. The second proviso to Section 35A of the Act requires, inter alia, that where Commissioner (Appeals) is of the opinion that any amount has been erroneously refunded, appellant should be given notice within the time limit specified in Section 11A of the Central Excise Act. Relevant section is reproduced below :-
“11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. – (1) When any duty of Excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such nonlevy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment r
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