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TMI Blog2010 (4) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... exporters as rebate on exports on NOC of the appellant. Dispute arose as to the determination of capacity of production and in particular whether gallery portion of a stenter be counted for capacity. The dispute was finally settled in favour of trade. Consequently, appellant filed claim of refund of Rs. 8,88,033/- on the ground that it paid duty on a capacity, which included the gallery portion. 2. The refund was granted vide STR-III/ADJ-55/Ref/2003, dated 30-5-03 by the Assistant Commissioner of Central Excise, Div-III, Surat-I in view of CESTAT Order No. C-II/4276-4404/02/WZB, dated 16-12-2002. Subsequently, show cause notice dated 21-3-05 was issued to the appellant for erroneous refund amounting to Rs. 1,55,080/- on gallery on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to refund the rebate sanctioned to him in terms of undertaking given by him. 5.3 Another point that was raised by the learned advocate was that the department should have filed an appeal against the refund sanctioning order and demand under Section 11A alone without review under Section 35E would not be sufficient. He relied upon several decisions of the Tribunal. 6. On the other hand, the learned SDR submitted that the appellant had made a mis-declaration when rebate had been claimed in respect various exports made through merchant exporter. They were duty bound to exclude this amount from the refund claim since they had already passed on the burden of this duty amount to merchant exporter, and not only that it is also based on declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be said that the merchant exporter claims rebate as an agent or as a party authorized by the appellant. Therefore, it cannot be said that the declaration made by the appellant in the refund claim is true under these circumstances. Therefore, the invocation of extended period is appropriate. 8.2 As regards claim that it was merchant exporter from whom the department should have recovered the amount, it would have been correct if the appellant did not claim refund of duty paid by them. It was for the appellant not to claim refund of the amount paid. In this case, it is not the question of recovery of rebate wrongly sanctioned. If the appellants were to follow correct procedure and did not claim refund of the amount which was passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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