TMI Blog2013 (6) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The said instruction is issued specifically with respect to sanctioning rebate claim of duty paid on exported goods and therefore assessee has to pay the effective rate of duty and claim rebate accordingly. Government holds that duty was required to be paid @ 8% on said goods on 24-2-2009, and rebate is admissible of duty paid @ 8% only under Rule 18 of Central Excise Rules, 2002 read with Notifn. No. 19/2004-C.E. (N.T.), dated 6-9-2004. Any plea of ignorance of law cannot be admitted as legal and proper - any amount paid in excess of duty liability on one’s own volition cannot be treated as duty and it has to be treated as a voluntary deposit with the Government which is required to be returned to the assessees/respondents in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. - Impugned order is set aside - Decided in favour of Revenue. - F. No. 198/346, 447/11-RA - 554-555/2013-CX - Dated:- 5-6-2013 - Shri D.P. Singh, Joint Secretary None, for the Department. Shri Subash Chandra Das, Officer (Marketing) and Neeraj Mainkar, Advocate, for the Assessee. ORDER These revision applications are f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) order is per incuriam as it does not consider the provisions of Section 5A(1A) of the Central Excise Act which stipulates that in case of unconditional exemption, no excess duty is payable. 3.2 The ignorance of law is not an excuse to pay the duty at higher rate. The goods are self-assessed by the assessee and the assessee who are in Excise for so many years; it is frivolous to give such an excuse. The assessee should be aware of the changes/modifications made in law and rate of duty, etc., and implement them immediately as per the requirement. 3.3 In the case of Rakesh Kanungo v. Commissioner C. Ex., Mumbai - [2004 (178) E.L.T. 1061 (Tri.-Mum.)] wherein inter alia it was held that Appeal to Appellate Tribunal - Restoration of appeal - Ignorance of law is no excuse - Appeal withdrawn for filing application before Settlement Commission - .. 3.4 In the case of Worldwide Diamond Mfgrs v. CCE, Vishakhapatnam - [2010 (249) E.L.T. 402 (Tri.-Bang.)] it was held that Demand - DTA clearances of EOU - Non-payment of 50% of Additional duty of Customs leviable under Section 12 of Customs Act, 1962 in terms of Notification No. 2/95-C.E. - Assessee s plea that they were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Dye Stuff Industries Ltd. v. UOI - 2003 (161) E.L.T. 12 (Bom.). In the said judgment it is held that Section 11A of Central Excise Act, 1944 being an independent substantive provision, the appellate proceedings are not required to be initiated before issuing show cause notice under Section 11A if there are grounds existing such as short levy, short recovery or erroneous refund, etc. Section 11A is an independent substantive provision and it is a complete code in itself for realisation of excise duty erroneously refunded. There are no pre-conditions attached for issuance of notice under Section 11A for recovery of amount erroneously refunded. This decision of Bombay High Court has been upheld by Hon ble Supreme Court reported as 2004 (163) E.L.T. A56 (S.C.) where Supreme Court has held that recovery of duty erroneously refunded is valid in law under Section 11A of Central Excise Act and there is no need of first filing the appeal against the assessment on the basis of which refund was erroneously sanctioned. Following case law also laid down the same principles. 8.1 In the case of Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)], the Apex Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1994 passed by the Assistant Commissioner. Therefore, the demand of erroneous refunds under Section 28 of the Customs Act, 1962 is sustainable. 8.4 In Roofit Industries Ltd. v. Commissioner of Central Excise, Chennai - 2005 (191) E.L.T. 635 (Tri.-Chennai) it has been held as follows : 4 We follow this precedent and apply the ratio of the Supreme Court s decision in Jain Shudh Vanaspati (supra) to the facts of the instant case and, accordingly, reject the appellants contention that a show cause notice demanding erroneously refunded duty could not be issued under Section 11A without revision/review of the refund order. No other issue has arisen from the submissions made in this case. 8.5 In view of the principles laid down in above said judgments, Government holds that the erroneous refund/rebate sanctioned under an order can be recovered by invoking provisions of Section 11A of Central Excise Act, 1944, without taking recourse to provisions of Section 35E ibid and filing appeal against the assessment on the basis of which refund was initially sanctioned. Hence, Government finds that appellate authority erred in holding that since the assessment at the time of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only under Rule 18 of Central Excise Rules, 2002 read with Notifn. No. 19/2004-C.E. (N.T.), dated 6-9-2004. Any plea of ignorance of law cannot be admitted as legal and proper. 9.3 Govt. however observes herein that any amount paid in excess of duty liability on one s own volition cannot be treated as duty and it has to be treated as a voluntary deposit with the Government which is required to be returned to the assessees/respondents in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. Hon ble High Court of Punjab Haryana at Chandigarh vide order dated 11-9-2008 in CWP Nos. 2235 3358 of 2007, in the case of M/s. Nahar Industrial Enterprises Ltd. v. UOI reported as 2009 (235) E.L.T. 22 (P H) has decided as under :- Rebate/Refund - Mode of payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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