TMI Blog2015 (1) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of Motor Industries Company Ltd Vs CCE reported in [1999 (6) TMI 124 - CEGAT, MADRAS]; in the case of Gillooram Gouri Shanker Vs CCE reported in [2000 (7) TMI 186 - CEGAT, KOLKATA] and also in the case of Rosemount (I) Ltd Vs CCE reported in [1998 (1) TMI 158 - CEGAT, MUMBAI]. I find that in the present case, show cause notice for recovery of erroneous refund under section 73 (1) has not been issued by the department. The Board Circular and the decision of Hon’ble Supreme Court as well as this Tribunal s judgment are squarely applicable in the present case. I, therefore, hold that the learned Commissioner could not have passed the impugned Order in Revision without issuing notice for recovery of erroneous refund under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x paid ₹ 952164/- Vide Order-in-Original No. 01/ST/Refund/ 2009-10 dt. 17-07-2009, the learned Assistant Commissioner granted refund of ₹ 952164/- which had been paid during last one year and held that the excess amount of ₹ 431581/- could be adjusted in subsequent payment. 4. The jurisdictional Commissioner vide Order-in-Revision dt. 08-07-2011 passed under section 84 of Finance Act, 1994, ordered for recovery of ₹ 1559695/- (Rs. 995638/- + ₹ 564057/-) under the provisions of section 73 read with section 84 of Finance Act, 1994. He observed that the Assistant Commissioner has granted refund of ₹ 995638/- excess paid during May 2007 to November 2007 by way of adjustment against the service tax liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 9,52,164 was unspent deposit and was liable to be refunded without any limitation. They also took the point that ld. Commissioner without considering the provisions of Rule 6 (1) A and 6 (3) observed that amount excess paid prior to January, 2008 could not have been adjusted against liability for subsequent period. It was also contended that refund of ₹ 9,52,164/- was basically refund of advance deposit for which there was no time limit, it being not the payment of tax. Appellant submitted that when provision of Section 73 (1) specifically provided for issuance of show cause notice, ld. Commissioner could not have invoked the general provisions of section 84 for revising the Order-in-Original. Reference was made to Hon ble Bombay H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g notice for recovery of erroneous refund under section 73(1) of Finance Act, 1994. (b) Whether in view of Rule 6(3) of Service Tax Rules 1994, appellants were eligible for adjustment of service tax excess paid. 10. It is seen that simple issue for consideration is whether in the absence of notice under section 11 (A) for recovery of erroneous refund within time limit prescribed therein. Whether such recovery is hit by limitation. It is observed that appellants have contended that since no demand for erroneously granted refund has been raised, department cannot force recovery for that amount. It was also submitted that when provision of section 73(1) specifically provided for issuance of show cause notice, Commissioner could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly applicable in the present case. I, therefore, hold that the learned Commissioner could not have passed the impugned Order in Revision without issuing notice for recovery of erroneous refund under section 73 of Finance Act, 1994. The order is liable to be set aside on this ground alone. Further ld. DR could not refer to any decision containing different findings nor could show that above referred decisions have been challenged. 12. In view of above, I find that appellant have successfully shown that the legal position is in their favour. Recovery of erroneously granted refund is not possible. Accordingly I set aside the impugned order and allow the appeal with consequential relief, if any, as per law. (Pronounced in Court on 14.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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