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2023 (1) TMI 1298 - AT - Central ExciseRecovery of Erroneous Refund - Fraudulently availing excess refund under the N/N. 56/2002 by over-valuing the goods cleared - HELD THAT:- On going through the provisions of the Notification, it is clear that the refund of duty as per the said Notification is different from refund of duty envisaged in Section 11B - the provisions of Section 11A, as far as recovery of “erroneous refund” is concerned, have no applicability to the refunds under the impugned notification. The issue is no longer res integra. The jurisdictional High Court of J&K has gone into the very same issue in the case of COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE VERSUS KRISHI RASAYAN EXPORTS PVT. LTD. [2023 (7) TMI 661 - JAMMU AND KASHMIR AND LADAKH HIGH COURT] and decided the matter in favour of the appellants holding that the refund sanctioned by the adjudicating authority in favour of the respondent was after proper application of mind and by passing of speaking orders and therefore, cannot be termed as 'erroneous refund' for the purposes of section 11A of the Act. Penalty - HELD THAT:- When the impugned order is not maintainable on merits, the question of penalty on the company or Shri Dinesh Garg would not arise. The impugned order is not legally sustainable and is liable to be set aside - Appeal allowed.
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