TMI Blog2015 (6) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... before 8.7.2010 which was done. However the requirement of clause (1) that the Order is subject to the provisions of Section 73 has to be met simultaneously. That is, the requirement of Section 73 has to be fulfilled. Section 73 (1) of the Finance Act is the provision in service tax law with regard to, inter alia, recovery of amounts erroneously refunded. The Section specifically lays down the procedure and time period within which Show Cause Notice must be issued for recovery of erroneous refunds. Show cause notice as contemplated under section 11A of the Central Excise Act is required to be issued for recovery of erroneously refunded amounts within the time limit as provided in that Section from the relevant date and not through proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid. The Assistant Commissioner sanctioned the refund amount. In revision proceedings, the Commissioner in passing the impugned order relied on section 84 of the Finance Act 1994, before its substitution on 19.08.2009 which reads as under: Revision of Orders by the Commissioner of Central Excise 1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter in which an adjudication authority subordinate to him has passed any decision or order and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit. 2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 84 is beyond the prescribed period of limitation of one year and therefore no recovery can be effected under the show cause notice. 3. Heard both sides. 4. The learned AR appearing on behalf of Revenue reiterated the points set out in the appeal. The AR tried to draw a distinction between the erstwhile section 84 and the new section 84 introduced from 19.08.2009, and stated that in view of the explanation appended to the new section 84, there is an error in the Commissioner's order. 5. The learned counsel for the respondent stated that the Commissioner in the impugned order has correctly come to the conclusion that although the revision proceedings under erstwhile section 84 must be concluded by passing of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the extra amount representing service tax from their distributors. 6.2 The ld AR contended that the erstwhile section 84 must be read with the substituted Section 84 effective from 19.08.2009. We find this argument faulty and to be rejected straightway. The period of dispute is Nov 2005 when the erstwhile Section 84 as reproduced in para 2 above, was in force. And we proceed to discuss the matter in the context of such Section as it stood before 19.08.2009. 6.3 The Commissioner, in the impugned order, did not consider it necessary to go into the merits of the case and refrained from examining the issue of unjust enrichment as well as the aspect of section 73A raised in the show cause notice. The Commissioner strikes at the very roo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner must be completed by passing an order within two years from the date on which the order sought to be revised has been passed. In this case the order sought to be revised was passed on 9.07.2008 and therefore order of Commissioner is required to be passed before 8.7.2010 which was done. However the requirement of clause (1) that the Order is subject to the provisions of Section 73 has to be met simultaneously. That is, the requirement of Section 73 has to be fulfilled. Section 73 (1) of the Finance Act is the provision in service tax law with regard to, inter alia, recovery of amounts erroneously refunded. The Section specifically lays down the procedure and time period within which Show Cause Notice must be issued for recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 73 and erstwhile Section 84 is accepted, it would lead to an incongruous situation whereby every show cause notice for recovery of erroneous refund could be issued beyond the time stipulation of one year as long as the proceedings under Section 84 are completed within the specified time limit of two years. It is obviously not the intention of the lawmakers to provide incongruity in the combined reading of these Sections. 6.6 In this view of the mater we do not find it necessary go into the other aspects such as unjust enrichment and applicability of section 73A. However as a passing reference we note that Section 73A was inserted in the Finance Act on 18.4.2006 whereas the period of contention in the present case is November 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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