TMI Blog2015 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the adjudicating authority again issued show-cause notices for recovery of erroneous refund on his own under section 11A. - issue has already been decided by this Tribunal in the case of Shasun Chemicals & Drugs (1995 (3) TMI 284 - CEGAT, MADRAS) and by the Hon’ble Supreme Court in the case of CCE Vs. Raghuvar (India) Ltd. (2000 (5) TMI 40 - SUPREME COURT OF INDIA) wherein it categorically held that when there is a limitation provided under the notification, the period mentioned under section 11A is not applicable. Ratio of this Tribunal order and the Hon’ble Apex Courts judgment are clearly applicable to the facts of the present case and there is no dispute on the fact that the refund was sanctioned under Rule 5 of CENVAT Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of ₹ 1,00,000/- under section 11AC of Central Excise Act, 1944 by common Order-in-Original No. 109 to 111/2003 dated 10.9.2003. Commissioner (Appeals) upheld the adjudication order. Hence, appellants have come in appeal before this Tribunal. 3. Learned counsel submits that the Department has sanctioned refund under Rule 57AC(7) of Central Excise Rules, 1944 and Rule 5 of CENVAT Credit Rules, 2002 being unutilized amount of credit accumulate towards their export. He submits that the refund orders were not reviewed by the Department nor any appeal filed against the said orders. Instead the adjudicating authority issued show-cause notices for recovery of refund. He further submits that as per clause 3 of Appendix to Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records, we find that the limited issue in this case is whether notices issued by adjudicating authority for demanding erroneous refund is hit by limitation specified under notification No. 35/2000 or whether general limitation for extended period is covered under section 11A of Central Excise Act,1944. 6. On perusal of the records, we find that the adjudicating authority had sanctioned refund of ₹ 74,99,199/- by three different orders-in-original. We find that all the refunds were sanctioned under Rule 57AC(7) of Central Excise Rules, 1944 and Rule 5 of CENVAT Credit Rules, 2002 as being unutilized credit accumulated on account of exports. As regards the appellants contention that Notification 35/2000-CE (NT) dated 1.3.2000 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but will be attracted only to cases where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded. The section also provides for an extended period on certain contingencies and situations. The situation on hand and the one which has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he faith and mutual trust and confidence which is the raison detre for the proper and successful working of the Modvat scheme and that too in gross violation of the mandatory requirements necessarily to be fulfilled before ever claiming or availing of such benefits cannot be said to be the same as the demand for payment to be made under Section 11A of the Act of any excise duty not levied or paid or has been short-levied or short-paid. They fall into two distinct and different categories altogether with basic as well as substantial differences to distinguish them from each other. As a matter of fact, Rule 57-I envisages disallowance of the credit and consequential adjustment in the credit account or the amount-current maintained by the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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