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2023 (1) TMI 693 - AT - Central ExciseDenial of refund claim - failure to produce proof of refund to the individual taxi owners - denial of refund on the ground that in respect of these claims appellant had failed to establish that the amount were refunded actually to individual taxi owners - applicability of N/N. 5/98-CE - HELD THAT:- On verification of documents as reflected in the remarks column above and having satisfied ourselves that the mismatches as stated are very minor in nature. Further it is also noted that there are errors in recording the engine number in the show cause notice whereby same engine number appeared twice in the show cause notice which is practically impossible. The verification as undertaken in these cases cannot be reason for denial and the verification has to be caused by referring to all other details. Having satisfied with correctness of these claims, it is held that demand made in respect of these claims needs to be set aside. It is settled law that the refund orders made in terms of the Section 11B of the Central Excise Act, 1944 are judicially determined, the same needs to be set aside in the manner as provided in law. Having not filed any appeal against the said refund orders those order had acquired finality and could not have been challenged by way of the proceedings initiated under Section 11A. In the case of M/S. EVEREADY INDUSTRIES INDIA LTD. VERSUS THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THE COMMISSIONER OF CENTRAL EXCISE [2016 (4) TMI 688 - MADRAS HIGH COURT] Hon'ble Madras High Court has held that Once an application for refund is allowed under Section 11B, the expression 'erroneous refund' appearing in sub-section (1) of Section 11A cannot be applied. If an order of refund is passed after adjudication, the amount refunded will not fall under the category of erroneous refund so as to enable the order of refund to be revoked under Section 11A(1). One authority cannot be allowed to say in a collateral proceeding that what was done by another authority was an erroneous thing. In case of M/S. HONDA SIEL POWER PRODUCTS VERSUS UNION OF INDIA THROUGH SECY. AND ANOTHER [2019 (12) TMI 803 - ALLAHABAD HIGH COURT], Hon'ble Allahabad High Court has observed that once the adjudication has taken place under Section 11B cannot proceed to recover on the basis of "erroneous refund" under Section 11A so as to enable the refund order to be revoked, as the remedy lied under Section 35E for applying to the Appellate Tribunal for determination and not invoking Section 11A. Thus, the Show cause Notice issued to the appellant itself would be hit by the opinion expressed by the Hon'ble High Courts in the above referred decisions - the penalties imposed on the dealers of the appellant, i.e. appellant number 2, 3 and 4 are set aside - appeal allowed.
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