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2019 (3) TMI 849 - AT - Central ExciseRecovery of erroneous refund - recovery in cash invoking proviso to section 11(A)(4) of the Act along with interest and penalty - whether the show cause notice could have been issued by the Department under Section 11A of the Act for recovery of the duty refunded to the Appellant once the orders passed by the Adjudicating Authority granting refund of duty had attained finality? Held that:- In the present case, the 12 orders passed by the Adjudicating Authority for refund of the excise duty under Section 11B of the Act had attained finality in as much as appeals were not filed under Section 35 of the Act by the Department - if the orders granting refund under Section 11B of the Act had attained finality, a show cause notice under Section 11A of the Act could not have been issued has to be examined. If this issue is decided in favour of the Appellant, then it may not be necessary to examine the alternative submissions advanced by the learned counsel for the Appellant regarding the show cause notice being barred by limitation or on the merits of the orders granting refund. It is seen from the records that the Appellant had initially filed 13 claims under Section 11B of the Act for refund of ₹ 1,90,53,661/- for the period commencing April, 2001 to June, 2004. Subsequently, 11 refund claims were filed for periods from October 2008 to September 2011. Section 11B provides that the refund application has to be accompanied by documentary evidence and if the Authority is satisfied that the whole or any part of the duty paid by the Applicants is refundable, it may make an order accordingly and the amount so determined shall be credited to the Appellant. It is, therefore, after scrutiny of the relevant documents that the Adjudicating Authority passes an order - In the instant case, the Adjudicating Authority had passed detailed orders after examining the documents on record and the various pleas, including the plea of unjust enrichment raised by the Department. Sub-section (4) of Section 35E provides that the Adjudicating authority may make an application to the Appellate Tribunal or the Commissioner (Appeals) pursuant to an order passed under sub-section (1) or sub-section (2) of Section 35E within a period of one month from the date of communication of the order and such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application was an appeal against the decision or order of the Adjudicating Authority and the provisions of the Act regarding appeals would apply - In the present case, neither was there any direction to the Adjudicating Authority by the Principal Commissioner of Central Excise or Commissioner of Central Excise to file an appeal nor any appeal was filed. In such circumstances, the order passed by the Adjudicating Authority under Section 11B for refund of duty, attained finality. Thus, Section 11A of the Act cannot be resorted to by the Department for recovery of duty which it believes was erroneously refunded if the order passed by the Adjudicating Authority for refund of duty under Section 11B of the Act on an application filed for refund of duty attained finality for the simple reason that it cannot fall in the category of ‘duty erroneously refunded’ - Thus, the show cause notice dated 30 January, 2015 seeking recovery of the duty refunded to the Appellant was without jurisdiction. The order passed on such a show cause notice, therefore, deserves to be set aside. Appeal allowed - decided in favor of appellant.
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