TMI Blog1998 (1) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneously refunded would amount to refund because the higher input credit has been taken. So far as the first two appeals are concerned of M/s. Fag Precision Bearings Ltd. the facts briefly are that the assessee M/s. Fag Precision Bearings Ltd. manufacture roller bearings falling under Ch. 8482.00 of the Central Excise Tariff Act, 1985. In their price list submitted under Rule 173C since it was not possible to furnish the detailed particulars of the elements of which they claimed exclusion from the assessable value at the time of filing their price list as well as at the time of removal of the goods, the price list including this element was submitted with a right reserving exclusion of such charges. Thus the price list approved was inclusive of freight charges, forwarding charges, insurance and trade discount (turnover bonus). The assessee filed claim for refund of Rs. 10,40,933 basic duty and Rs. 52,046 S.E. duty on 29-12-1988 for the period 1-7-1988 to 30-9-1988 claiming refund of duty paid on higher value approved. The jurisdictional Asstt. Commissioner by its Order-in-Original dated 5-7-1989 sanctioned the refund of Rs. 1,46,939.20 being the admissible deductions from the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11A. The Commissioner (Appeals) noted that Section 35A(3) provides that no order requiring the appellants to pay any duty not levied or paid, short levied or short paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit under Section 11A to show cause against the proposed order. Since there was no notice under Section 11A, the Commissioner (Appeals) rejected the review application. 3. In Appeal No. 760/92-Bom, the assesee respondents filed refund claim of Rs. 57,921.97 for the period April, 1985 to June, 1985 and another claim of Rs. 76,654.64 for the period 1-7-1985 to 30-9-1985 on the ground that the assessee respondents at the first instance got their price list approved including freight, forwarding and insurance charges and trade discount but later on submitted a refund claim claiming refund on the higher value which included the permissible deductions. The Asstt. Commissioner passed an order on 6-6-1989 allowing the respondents to take credit of the refund amount debited in their RG 23A part II Modvat account. The jurisdictional Commissioner applied for review of the Asstt. Commissioner s order on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35E, has no rhyme or reason. It further held that an appellate or revisional provision isasmuch a provision of law conferring substantive right as a provision regulating refund or recovery of an amount erroneously refunded. The ld. DR further relied upon another decision of the Tribunal in Andhra Sugars Ltd. v. Collector of Central Excise - 1991 (55) E.L.T. 262 (Tribunal), wherein the Tribunal held that, in terms, the second proviso to Section 35A(3) does not apply to a case where the Asstt. Commissioner is the appellant before the Commissioner (Appeals) because it talks of the notice to the appellant. The Tribunal also held that having regard to the time limit available for the examination of records relating to an adjudication by Asstt. Commissioner to be undertaken for the propriety or legality of the Asstt. Commissioner s order by the Commissioner, and also the time limit for filing of an appeal by the Asstt. Commissioner incorporated in Section 35E(4), it would be seen that the Commissioner (Appeals) will not, save in exceptional cases, be in a position to issue a notice to the assessee respondent within the normal time limit from the relevant date specified in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal from time bar. When any excise duty has been erroneously refunded, Section 11A requires that the Central Excise Officer should within six months from the relevant date, serve a notice on the person to whom the refund was erroneously made requiring him to show cause why he should not pay the amount specified in the notice. In case of erroneous refund, the relevant date has been defined as the date of refund. The section has a time limit of five years if the erroneous refund was caused by fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act and rules made thereunder with intent to evade payment of duty. The Collector (Appeals) misunderstood the function of the time limit of Section 11A and thought it could be used in proceedings under Section 35E for counting the time limit within which the application should be filed. Filing of the appeal or the application within five years does not safeguard the demand from the time bar if a time bar has arisen, and an order passed by the Appellate Collector made under Section 35E cannot have the effect of nullifying Section 11A and its time limit. The time limit of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e re-credited to the Department. We do not find any substance in the argument of the appellant that without the original authority invoking Section 11A, the direction to recredit the amount cannot be upheld. Consequently, the view taken by the learned Single Judge is approved and the writ appeal is dismissed. We further observe that appeals against two decisions of the Tribunal holding that an order of erroneous refund can be set aside only by following the procedure to review the order granting such refund under Section 35E(2) of the Central Excises Act have been dismissed by the Supreme Court as indicated in 1994 (65) E.L.T. A151 - Collector v. Polimere Alloys Chemicals and C.C.E. v. Western India Works - 1990 (48) E.L.T. A63. 10. We find, however, that the Tribunal decision in the case of Re-rolling Mills (supra) has been appealed against by the Collector before the Supreme Court and the Supreme Court has dismissed the appeal as reported in 1997 (94) E.L.T. 8 (S.C.) - Collector v. Re-rolling Mills by following its precedent decision reproduced below : The learned Counsel for the parties do not dispute that this appeal is covered by the decision of this Court in Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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