TMI Blog2013 (7) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... it was paid as the said amount cannot be retained by Government without any authority of law. - Decided partly in favour of assessee. - F.Nos. 198/593-594, 597/2011-RA - 864-866/2013-CX - Dated:- 4-7-2013 - Shri D.P. Singh, Joint Secretary None, for the Department. Shri S.V. Apte, Advocate Vinod Chandra B. Vyas, Vice President (Indirect Taxation), for the Assessee. ORDER These revision applications are filed by the applicant Commissioner of Central Excise, Raigad, against the Orders-in-Appeal passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II, Mumbai with respect to Orders-in-Original passed by Assistant Commissioner of Central Excise, Raigad as detailed below : Sl. No. R.A. No. Name of Respondent Order-in-Appeal No. date 1. F. No. 198/593/11-RA M/s. Brilliant International, Thane YDB/444/RGD/2011, dated 29-4-2011 2. F. No. 198/594/11-RA M/s. Sam Alloys Pvt. Ltd., Thane YDB/421/RGD/2011, dated 25-4-2011 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuse - Appeal withdrawn for filing application before Settlement Commission - .. 3.4 In the case of Worldwide Diamond Mfgrs v. CCE, Vishakhapatnam - [2010 (249) E.L.T. 402 (Tri.-Bang.)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 not aware of their liability rejected as ignorance of law was no excuse - It was more so as they had not contested their liability to duty - Section 11A of Central Excise Act, 1944. 3.5 The provisions of para 3(b) of the Notification No. 19/2004 (N.T.), dated 6-9-2004, issued under Rule 18 of the Central Excise Rules, 2002, clearly spelled out that if the proper officer (i.e. AC/DC of Central Excise having jurisdiction over the factory or Maritime Commissioner) is satisfied himself that the claim is in order then he shall sanction the rebate either in whole or part. This means that he is empowered to look into the correctness of the rebate claim. 4. Show cause notices under Section 35EE of the Central Excise Act, 1944 were issued to the respondents. The respondent Nos. 1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 held in paras 5, 6 7 as under : 5. It is patent that a show cause notice under the provisions of Section 28 for payment of Customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance under Section 47 of the concerned goods. Further, Section 28 provides time limits for the issuance of the show cause notice thereunder commencing from the relevant date ; relevant date is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fling 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 export was not challenged, the rebate claim cannot be reduced with reference to the time of assessment. 9. Government further notes that it is undisputed position that notification changing effective rate of duty takes effect from the date of publication of notification in official Gazette as held in Hon ble Supreme Court decision in the case of UOI v. Ganesh Das Bhojraj - 2000 (116) E.L.T. 431 (S.C.). So, it is a settled legal position that on 24-2-2009, duty was payable on impugned goods @ 8% in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 appropriate. Hon ble High Court of Punjab Haryana has observed that refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat Credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially. 10. In view of above discussions, Government sets aside the impugned orders-in-appeal and allows the revision application. Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
