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2021 (12) TMI 673 - AT - Central ExciseRefund of Additional Excise Duty (AED) - applicability of amended Section 11AB (effective 11 May 2001) on account of an erroneous refund of the AED - period April 2000 to May 2001 - HELD THAT:- Section 11AB was inserted in the statute book only with effect from 28 September 1996. Intention to evade was an essential concomitant under the pre-amended Section 11AB(1), however, the said requirement was done away with under the amended Section 11AB(1). In the instant case, it is an undisputed position clearly forthcoming from the case records that the erroneous refund of ‘AED’ to the respondent was not attributable to any mala fide or intent to evade on the part of the respondent thereby ruling out the applicability of the pre-amended Section 11AB(1). The Board vide Circular dated 26 June 2002 taking note of the decision of the Hon’ble Supreme Court in the case of MP Tapesrendered in the context of Section 11AB, clarified that the date of passing of the adjudication orders have no bearing in the matter of interpretation of the expression duty become payable or ought to have been paid - the contentions of the revenue as regards passing of the adjudication orders holding the refund as erroneous in February 2002 does not allow them to take recourse to amended Section 11AB(1) in view of the restrictions contained in the amended Section 11AB(2). The proposal in the Notice to recover interest from the date of grant of erroneous refund as evident from the annexure thereof itself militates against the revenue’s contention of the interest liability accruing under the amended Section 11AB basis the date of the adjudication order. The amended Section 11AB(1) shall apply in the matter of recovery of interest on such erroneous refund in respect of April 2001 and May 2001 and to that extent the ‘OIA’ dated 25 November 2010 deserves to be modified - the alternate contention of the Respondent as regards lack of any substantive provision for recovery of interest in the statute charging ‘AED’, cannot be accepted. The provision of Section 133(3) of the Finance Act, 1999 incorporates by reference, all such provisions of the Central Excise Act in relation to levy and collection of ‘AED’. The expression collection is wide enough to include collection of erroneous refund of ‘AED’. The Appeal filed by the Revenue is partly allowed.
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