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2015 (10) TMI 572 - AT - Central ExciseRecovery of erroneous refund of unutilized cenvat credit - period of limitation - Export of service - whether notices issued by adjudicating authority for demanding erroneous refund is hit by limitation specified under notification No. 35/2000 or whether general limitation for extended period is covered under section 11A of Central Excise Act,1944 - Held that:- it is clear that the demand of erroneous refund made under this notification shall be within six months from the date of refund. We also find that the adjudicating authority has sanctioned the refund but there is nothing on record to show that the said order has been reviewed whereas we find that the adjudicating authority again issued show-cause notices for recovery of erroneous refund on his own under section 11A. - issue has already been decided by this Tribunal in the case of Shasun Chemicals & Drugs (1995 (3) TMI 284 - CEGAT, MADRAS) and by the Hon’ble Supreme Court in the case of CCE Vs. Raghuvar (India) Ltd. (2000 (5) TMI 40 - SUPREME COURT OF INDIA) wherein it categorically held that when there is a limitation provided under the notification, the period mentioned under section 11A is not applicable. Ratio of this Tribunal order and the Hon’ble Apex Courts judgment are clearly applicable to the facts of the present case and there is no dispute on the fact that the refund was sanctioned under Rule 5 of CENVAT Credit Rules, 2002 in terms of Notification No. 35/2000. Therefore, when such notification clearly stipulates time limit for recovery of erroneous refund the adjudicating authority ought to have demanded erroneous refund within six months, instead the notices were issued beyond six months by invoking section 11A. - Respectfully following the decision of the Hon’ble Apex Court and this Tribunal, the demand of erroneous refund is hit by limitation - Decided in favour of assessee.
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