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2019 (9) TMI 577

..... n case M/S TVS MOTOR COMPANY LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE& SERVICE TAX MYSORE [2017 (6) TMI 163 - CESTAT BANGALORE], this Tribunal has held that any appeal against the sanctioning of refund order, the Revenue cannot recover erroneously sanctioned refund by parallel proceedings by issue of SCN. The Division Bench of this Tribunal in the case of C.C.,C.E. & S. T- MYSORE VERSUS JK TYRE & INDUSTRIES LTD., VIKRANT TYRES LTD. [2018 (6) TMI 174 - CESTAT BANGALORE] has held that the test of unjust enrichment does not apply to the cases of provisional assessment. Refund allowed - appeal allowed - decided in favor of Appellant. - E/20533/2019-SM - Final Order No.20715/2019 - 13-9-2019 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Mr. Sayeed Peeran, Advocate For the Respondent : Mr. Madhup Sharan, Asst. Commissioner (AR) ORDER The present appeal is directed against the impugned order dated 04.02.2019 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of two wheeler motor vehicles and clears goods to the de .....

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..... idly sanctioned. He also submitted that it is now impermissible for the department to raise the same dispute in the present proceedings by issuance of SCN for recovery of refund allegedly erroneously sanctioned. He further submitted that the only ground involved in the impugned order is unjust enrichment and in Paragraph 6 of the Order dated 29.10.2007 sanctioning refund gives explicit and clear findings that unjust enrichment is not attracted in the appellant s case. He further argued that test of unjust enrichment has already been considered and decided in favour of the appellant. He also argued that based on the subsequent development to the sanctioning refund i.e. position in the case of Addision & Co., the adjudicating authority cannot change its opinion and initiated proceedings to recover refund rightfully sanctioned to the appellant without challenging the order sanctioning refund. Finally, he argued that in absence of any challenge to the said final order sanctioning refund, the present proceedings for recovery of refund stands infructuous and cannot be sustained on this ground alone. He further submitted that this issue is no more res integra and has been settled in f .....

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..... t. 6.1. Further, I find that the Division Bench in Para 24 has observed as under: 24. This issue was also examined by the Andhra Pradesh High Court in Panyam Cements & Minerals Industries Ltd. and it was held that where an order under Section 11B of the Act attains finality, the refund allowed would be outside the scope of an erroneous refund contemplated under Section 11A of the Act. The relevant paragraph is reproduced below : 16. ………… A careful analysis of the Sections 11A and 11B of the Act would leave no manner of doubt that there is an adjudication process involved in the processing of the applications made under Sections 11A and 11B of the Act and further the orders passed under Sections 11A and 11B of the Act are appealable. The determination of an application made under Section 11B of the Act would result in the entitlement of an applicant for refund of any excise duty paid. If a very determination does not result in declaration of entitlement of refund any money paid in obedience to an order by an authority in the process of adjudication of such claims cannot be termed as granting of erroneous refund. Such payment would fall in the category .....

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..... fore, we would give the benefit of doubt to the Assistant Commissioner and presume that before according sanction in September, 1998 for refund, he had actually followed the procedure under Section 11B and passed an order of adjudication. 34. Once it is seen that an order of adjudication has been validly passed under Section 11B and a refund has also been made on 29-9-1998, then the next question that would fall for consideration is as to whether Section 11A can be invoked thereafter. We have already extracted the provisions of Section 11A. Interestingly, the authority, given under Section 11A(1) for recovery of any refund erroneously paid, is upon the Central Excise Officer. The expression used in Clause (a) in sub-section (1) of Section 11A is Central Excise Officer‟. 48. Insofar as the decision of the Andhra Pradesh High Court is concerned, one observation made in Paragraph 16 of the said decision is of prime importance. In Paragraph 16, the Andhra Pradesh High Court has made it clear, after analysing Sections 11A and 11B that there is an adjudication process involved in the processing of applications made under Sections 11A and 11B. The Andhra Pradesh High Court held that .....

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..... unal in the case of Indian Telephone Industries which was decided vide Final Order Nos. 21010-21011/2016 dated 20.10.2016 wherein while disposing the Revenue‟s appeal the Tribunal observed as follows: ….. We note that facts in the present case is identical to that in the above case and hence is required to be followed. We have also considered the decision of the Apex Court in the case of Addision and Co. cited supra by the Revenue and are of the view that the facts in the present case are different from that before the Apex Court in as much as in the Addison case, the Apex Court was considering a case of normal refund and not adjustments at that time of finalization of provisional assessment. Hence the case is distinguishable. B.2. Following the aforesaid decision the Ld. Singe Member in another case of JK Tyre Industries Ltd. Vs CCT, Mysore reported at 2018 (12) TMI 245 (Annexure-20) at Paragraph 5 of the order held as follows: After hearing the submissions of both the parties and on perusal of the material on record, I find that this issue is no more res integra and has been settled by various decisions of the Tribunal where it has been held consistently that in a ca .....

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