TMI Blog2018 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... given notice within the time limit specified in Section 11A of the Central Excise Act. The order passed by the Commissioner (Appeals) cannot sustain and will therefore have to be set aside - appeal allowed. - E/110/2009 - Final Order No.40017/2018 - Dated:- 3-1-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. D. Naveena, Advocate for the Appellant Shri R. Subramaniyan, AC (AR) for the Respondent ORDER Per Bench The facts of the case are that M/s. Golden Plast Rigid PVC Pipes, herein after referred to as the appellants, are manufacturers of rigid PVC pipes. On an allegation that the appellants had suppressed production and clearance and that their clearances ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions, which can be summarized as under:- 2.1 Section 35A(3) of the Act lays down two important conditions or procedures to be followed by the Commissioner (Appeals) viz. (i) reasonable opportunity to show cause against the proposed order; (ii) a show cause notice within the time limit prescribed in section 11A, whereas in the instant case, no such notice was issued by the Commissioner (Appeals). 2.2 The refund which was sanctioned vide cheque E262710 dated 14.3.2007 ought to have been demanded only by issuing a proper show cause notice in terms of section 11A. It was pointed out to Commissioner (Appeals) that erroneous refund cannot be demanded by way of section 35E(2) of Central Excise Act, 1944 without issuing notice as per the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very same amount by second adjudicating authority in order dated 14.3.2007. This being so, there is no legal infirmity in the procedure followed by the department and that there was no necessary to issue another show cause notice proposing recovery of erroneous refund. 4. Heard both sides and have gone through the records. 5. Based on the investigations initiated by the department and the short-payment of duty pointed out, the appellant had paid up an amount of ₹ 3,82,431/- in the formal proceedings issued for recovery and appropriation of this amount by a show cause notice. The adjudicating authority dropped the proceedings. In consequence, the appellant filed refund claim seeking refund of the amount paid by them at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as laid down. The SC in the case of CCE v. Re-Rolling Mills [reported in 1997 (94) E.L.T. 8 (S.C.)] has inter alia held as following. The learned Counsel for the parties do not dispute that this appeal is covered by the decision of this Court in Union of India Ors. v. Jain Shudh Vanaspati Ltd. Anr. - 1996 (86) E.L.T. 460 (S.C.) = (1996) 10 SCC 320. In that case the Court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of the Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed . In this context the point to be stressed is that the Order passed u/s 35E(2) does not automatically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to section 35A of the Act requires, inter alia, that where Commissioner (Appeals) is of the opinion that any amount has been erroneously refunded, appellant should be given notice within the time limit specified in Section 11A of the Central Excise Act. Relevant section is reproduced below:- 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of Excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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