2018 (10) TMI 469 – CESTAT HYDERABAD – TMI – Recovery of Refund already paid – CENVAT credit – time limitation – section 11B of Central Excise Act, 1944 – the original adjudicating authority sanctioned refund claim in full but subsequently the department reviewed the Order-in-Original under section 35E(2) of Central Excise Act,1944 and directed the Deputy Commissioner to file an appeal against the said Order-in-Original – penalty u/r 13 (1) of CCR 2002 /15(1) of CCR 2004 – demand of interest.
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Held that:- The issue is no more res-integra as decided by the Tribunal in the case of M/S. GOLDEN PLAST RIGID PVC PIPES VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY [2018 (1) TMI 421 – CESTAT CHENNAI], where it was held that 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
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er( in-Appeal No. TTD-EXCUS-ooo-APP-123-17-18, dated 08.02.2018; appellant had filed refund claim dated 9.4.2015 for a sum of ₹ 13,95,029/- before the Dy. Commissioner of Customs & CE, Tirupati II Division, Tirupati under section 11B of Central Excise Act, 1944, pursuant to Final Order No. 20070/2014, dated 22.01.2014 of the Tribunal wherein it was held that show cause notice dated 28.04.2006 is time barred; the original adjudicating authority sanctioned refund claim in full but subsequently the department reviewed the Order-in-Original under section 35E(2) of Central Excise Act,1944 and directed the Deputy Commissioner to file an appeal against the said Order-in-Original. Accordingly, the Department filed an appeal before the Commissioner (Appeals) Guntur and the same has culminated in the impugned order rejecting the partial refund of ₹ 4,55,614/-. The Ld. Advocate further submits that it is a well settled legal position that there must be a show cause notice under se
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Ltd. vs. CCE, Trichy [2006(205) ELT 277 (Tri.-Chennai)] Ld. DR further argued that the appellants had never disputed the disallowance and payment of CENVAT credit of ₹ 3,15,306/- which they had already reversed. Further, the Commissioner (Appeals) vide Order-in-Appeal No. 05/2009 (T) CE, dated 20.03.2009 had set aside the penalty of ₹ 3,15,306/- and had upheld the penalty of ₹ 1.00 lakh and interest. It is his submission that the appellants are now raising new plea before the Tribunal. In support of his submissions, he relied upon various decisions. 3. Heard both sides and perused the appeal records. The only dispute in the present appeal is the eligibility of the refund of CENVAT credit of ₹ 3,15,306/- availed on various items of iron and steel used in civil works; penalty of ₹ 1.00 lakh under rule 13 (1) of CCR 2002/15(1) of CCR 2004 and interest amount of ₹ 40,308/-. I find that the issue is no more resintegra as decided by the Tribunal in the cas
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notice should have been issued under Section 11A for recovery of duty allegedly erroneously refunded . This certainly was not done. Of course, there had been some doubt regarding whether erroneous refund granted could be granted by recourse to review under Section 35E of the Central Excise Act or whether appellants were required to be issued show cause notice under Section 11A within the statutory time limit. In the Circular dated 22-9-1998, relied upon by the Ld. Counsel, the C.B.E. & C. has clarified that timely demand should be raised under Section 11A for erroneous refund. The relevant portion of the Circular is hereby reproduced for better understanding :- 7. In the Circular No. 423/56/98-CX, dated 22-9-1998, the C.B.E. & C. had issued the following clarification :- Certain doubts have been raised regarding whether the erroneous refunds granted could be recovered by recourse to review under Section 35E of the Central Excise Act or demands under Section 11A within the stat
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SCN, the SCN should precede the proceedings u/s 35E(2). This view has been supported by the opinion of the Law Ministry. The Law Ministry vide F. No. 387/78/98-JC has opined thus, In view of the judgment of the Apex Court in CCE v. Re-Rolling Mills – 1997 (94) E.L.T. 8 dismissing the appeal preferred by the Department against the CEGAT order, the order passed by the Tribunal on 27-1-1998 in the present case of M/s. Fag Precision Bearing Ltd. reflects the correct legal position. We, therefore, agree with the view of the referring Department that the demand for recovery of erroneous refund has to be made u/s 11A of the Central Excise Act, 1944 within the prescribed limitation period . In view of above it is clarified that timely demands should invariably be raised (within six months normal period) under Section 11A of the Act. 5.1 The period of dispute in the impugned appeal is 2003-04 and as such, the department officers were fully aware of the above Board circular which is also bindin
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r any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of Excise has not been levied or paid or has been shortlevied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words one year , the words five years were substituted. 4. In view of the above discussions, the impugned order is set aside and the appeal filed by the appellant is
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