TMI Blog2012 (8) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] holding 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 order by which refund was erroneously sanctioned. - Decided in favour of Revenue. - F. No. 198/540/2010-RA - Order No. 919/12-CX - Dated:- 22-8-2012 - Shri D.P. Singh, Joint Secretary Shri Rohit Singh Jain, Director, for the Assessee. None, for the Department. ORDER This Revision Application is filed by the Commissioner Central Excise, Delhi-I against the orders-in-appeal No. 173-CE/Appl/2009, dated 8-9-2010 passed by the Commissioner of Central Excise (Appeals), Delhi-I with respect to order-in-original passed by the Assistant Commissioner, Central Excise, Division-I, Rajendra Place, New Delhi. M/s. Oswal Vinyl Industries Ltd., Delhi is the respondent in this case. 2. Brief facts of the cases are that the respondent M/s. Oswal Vinyl Industries Ltd. registered with Central Excise and engaged in the manufacture and export of coated cotton fabrics, were issued nine show cause notices for recovery of rebate claims sanctioned to them along with interest as they failed to submit rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities evidencing the date of actual export, within 120 days of the Let Export Order. The appellate authority has further observed that it can be seen from the Para 2.3.1 of the said Circular that BRC is required only if TR copy of the Shipping Bill is not received within a period of 120 days. Thus even from the observation of the appellate authority it is evident that if the conditions laid down in the above-mentioned Circular are not met within the period stipulated for the post-verification of the rebate claim so sanctioned, the said rebate claim will become erroneous. 4.4 The party has not produced the BRC pertaining to the Shipping Bill 1556634, dated 20-12-2005, even after a lapse of almost 5 years, from the date of shipment. The TR Copy of the said Shipping Bill has also not been received in the concerned Division nor has the same been produced by the party. This clearly violates the conditions prescribed under Para 2.3.1 of the C.B.E. C. Circular No. 354/70/97-CX., dated 13-11-1997. Therefore, in view of Para 2.3.2 of the said Circular, rebate claim of ₹ 1,38,992/- sanctioned in respect of the above-mentioned Shipping Bill can be termed as erroneously sanctioned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and also perused impugned order. 8. Government observes that the respondent exported their goods and filed claims of rebate against the exports made by them. The original authority initially sanctioned rebate claims filed by the respondent. After sanction of rebate claims it had been observed by the applicant department that the respondents failed to submit copy of BRC (Bank Realization Certificate) w.r.t. exports in question in violation of Board s Circular No. 354/70/97-CX., dated 13-11-1997. Finally, the demand of ₹ 1,38,992/- is confirmed in respect of goods exported vide Shipping Bill No. 1556634, dated 21-12-2005 (ARE-1 No. 40/2005, dated 27-12-2005) for non-submission of relevant BRC. 9. Government notes that as per condition 2(g) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 the rebate of duty paid on those excisable goods export of which is prohibited under any law for the time being in force shall not be made. There is requirement of realizing the foreign exchange due to any person resident in India against the exports made as per provisions of Foreign Exchange Management Act, 1999. So, there is a prohibition on export of goods which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Hon ble High Court of Bombay in the case of M/s. 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 preconditions 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.) holding 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 order by which refund was erroneously sanctioned. Following case laws have also laid down the same principles. 10.1 In the case of Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1-3-1994 and 99 dated 11-3-1994 passed by the Assistant Commissioner. Therefore, the demand of erroneous refunds under section 28 of the Customs Act, 1962 is sustainable. 10.4 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. 10.5 In Ogilvy Mather Pvt. Ltd. v. Commissioner of Service Tax, Bangalore [2010 (18) S.T.R. 502 (Tri.-Bang.)], the Hon ble CESTAT has inter alia held in Para 9.2 as under : From the above judicial authorities, it is amply clear that the erroneous refund sanctioned under an order can be recovered by invoking provision of Section 11A of the Central Excise Act without taking recourse to provision of Section 35E of the Act and filing appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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