TMI Blog2019 (12) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of duty paid in proportion to the discount given to dealers/ distributors and, therefore, issue of unjust enrichment is a remote possibility and further, the order observed that duty to the tune of ₹ 17,89,42,303/- was passed on to the customers and duty deposited to the tune of ₹ 1,03,75,633/- was in excess - Further, an application being made by petitioner was adjudicated by Assistant Commissioner on 05.11.2015 wherein it was held that it was not a case of unjust enrichment and petitioner was entitled for refund. This order was also not challenged by revenue and the same attained finality. Initiation of proceedings under Section 11A for recovery of excise duty - change of opinion - adjudication had been made by department making final provisional assessment and, thereafter, no appeal being filed challenging the said adjudication which having attained finality - HELD THAT:- As it is not in dispute that after provisional assessment order, the adjudicating authority passed an order for refund under Section 11B of the Act. Both the orders which were appealable and revisable under Section 35 and 35E were never taken to the higher forum by revenue and they attained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtiorari for quashing show-cause notice dated 17.08.2017 and order dated 30.11.2017, and also for writ of mandamus restraining respondents from enforcing demands in respect of repayment of refund received by petitioner. 3. Facts in brief are that petitioner is a Company incorporated under the Companies Act, 1956 and is engaged in manufacture of portable gensets and IC engine falling under Chapter Heading No. 85 and 84 of First Schedule to Central Excise Tariff Act, 1985. 4. Dispute relates to period 2014-15. According to petitioner, it applied for provisional assessment of excise duty under Rule 7 of Central Excise Rules, 2002 (hereinafter called as Rules ) on 01.04.2014. The Excise Commissioner, Central Excise, Division II accepted the request of petitioner for provisional assessment and intimated the same on 31.07.2014. The said correspondence is on record as Annexure-5. Petitioner-Company, thereafter, filed an application for finalisation of provisional assessment on 19.06.2015. 5. Provisional assessment was finalised for period 2014-15 by Assistant Commissioner on 24.07.2015, copy of said order is on record as Annexure-8. According to provisional ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, whereby refund of excess excise duty was paid to petitioner, and thus, it attained finality. It is contended that by issuing show-cause notice dated 17.08.2017 seeking to reopen the proceedings and, thereafter, by passing order impugned dated 30.11.2017, the respondent authorities had committed gross illegality to question the correctness of earlier orders which had become final. Reliance placed by department on the decision of the Apex Court in case of Union of India vs. Jain Shudh Vanaspati, 1996 (86) ELT 460 (SC) cannot be applied in the present case, as said case relates to fraud which is not alleged in the present case. It is further contended that Section 35E of Excise Act provides that power of review is available with the Commissioner under which it can be directed that an appeal against any order be filed by department. As orders dated 24.07.2015 and 05.11.2015 whereby provisional orders were finalised and refund was granted, also qualifies as order passed under the Act, and respondents were entitled to file an appeal against such orders. In absence of any appeal, these orders attained finality and cannot be reopened by starting collateral proceedings by issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Supreme Court challenges the same on the ground that duty was not payable or was payable at a lesser rate, it was held that manufacturer was not entitled to claim any refund as the adjudication order had become final. In case in hand assessment order as well as refund order having become final, revenue cannot restart the matter by issuing show-cause notice exercising power under Section 11A of the Act. 13. The second point canvassed by counsel for petitioner is that show-cause notice dated 17.08.2017 was issued after more than two years from finalisation of assessment order dated 24.07.2015 and is barred by limitation. Show-cause notice has been treated from the date of refund order dated 05.11.2015, which is a consequential order after finalisation of assessment, thus, show-cause notice is beyond two years and is barred by limitation. Reliance has been placed upon a decision of the Apex Court in case of CTO v. Binani Cements (2014) 8 SCC 319, wherein it has been held that a specific provision relating to a specific and defined subject would prevail over a general provision relating to a broad subject. 14. Sri Gulati further submitted that issuance of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dencing that incidence of duty lied with assessee, no commercial invoices were issued by applicant to its customers on which no excise duty was mentioned. While reading Section 11B(2), it is clear that where manufacturer has applied for refund of excise duty, clause (d) of Proviso to Section 11B(2) states that (i) the duty of excise should have been paid by the manufacturer and (ii) such incidence of duty must not have been passed on to any other person. In the present case, it is not in dispute that incidence of excise duty which was initially passed on to dealer was borne by petitioner on issuance of credit notes and discounts on invoices. The Commissioner on the basis of such credit notes and invoices had held petitioner to have paid excess excise duty, thus, the law laid down by Apex Court in case of Addison and Company (supra) was not applicable in the present case. 18. Stress was also laid upon the fact that Civil Appeal No. 8488 of 2009 decided along with case of Addison and Company (supra) where credit notes were issued regarding return of excise duty paid and CA certificate was produced, the Apex Court dismissed the appeal of the revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different from Civil Appeal No. 7906 of 2002, the appeal preferred by the Revenue is dismissed. 19. In the present case, CA certificate dated 15.06.2015 was submitted to substantiate that burden of duty initially passed on to dealers/ distributors was assumed back by petitioner after credit notes were issued. 20. As to the maintainability of writ petition, Sri Gulati submitted that the Apex Court in State of Punjab vs. Bhatinda District Cooperative Milk Producers Union (2007) 11 SCC 363 had held that question of limitation being a question of jurisdiction, a writ petition under Article 226 of the Constitution is maintainable. He also relied upon decision of this Court in case of Samsung India Electronics Pvt. Ltd. (supra) wherein it has been held that writ petition is maintainable when reassessment proceedings are initiated on the basis of mere change of opinion. 21. It was lastly contended that no burden of excise duty was passed in respect of cash discount and mega discount is concerned to the dealers/ distributors. Perusal of invoices issued by petitioner reveals that in case of cash discount and mega discount, the discounts are passed on to dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n erroneously refunded. 27. We have heard counsel for the parties and perused the material on record. Before proceeding to decide the issue in hand, it would be necessary to have a cursory glance at relevant provisions of Central Excise Act, 1944. Relevant portion of Sections 11A and Sections 11B, 12B, 35E and 35 are extracted here as under:- Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, (a) the Central Excise Officer shall, within [two years]from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest. (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. Section 35E. Powers of [Committee of Chief Commissioners of Central Excise] or [Principal Commissioner of Central Excise or Commissioner of Central Excise] to pass certain orders- (1) The Committee of Chief Commissioners of Central Excise may, of its own motion, call for and examine the record of any proceeding in which a Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority has passed any decision or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, an application being made by petitioner was adjudicated by Assistant Commissioner on 05.11.2015 wherein it was held that it was not a case of unjust enrichment and petitioner was entitled for refund. This order was also not challenged by revenue and the same attained finality. 31. Thus, question for consideration before us is, as to whether the revenue can initiate proceedings under Section 11A for recovery of excise duty, once adjudication had been made by department making final provisional assessment and, thereafter, adjudicating application for refund under Section 11B, and no appeal being filed challenging the said adjudication which having attained finality, is barred on the ground of change of opinion or would amount to reassessment when once the revenue did not take recourse to appeal in higher forum. 32. As it is not in dispute that after provisional assessment order, the adjudicating authority passed an order for refund under Section 11B of the Act. Both the orders which were appealable and revisable under Section 35 and 35E were never taken to the higher forum by revenue and they attained finality. It was only after decision of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As Section 11A(1)(a) uses the word Central Excise Officer who is empowered for recovery of any refund, Central Excise Officer is defined in Section 2(b) of the Act to mean Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner of Central Excise, Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or any other officer of Central Excise Department invested by Central Board of Excise and Customs constituted under Central Board of Revenue Act, 1963 with any of powers of a Central Excise Officer under the act. Thus, an order of recovery can be passed under Section 11A by an Assistant Commissioner, as he happens to be a Central Excise Officer in terms of Clause (a) of sub-section (1) of Section 11A, though an application under sub-section (2) of Section 11B can be made and an order for refund can either be passed by Assistant Commissioner or by Deputy Commissioner. Meaning thereby that a Deputy Commissioner can pass an order for refund under Section 11B (2) and an Assistant Commissioner can invoke proceedings for recovery under Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), Simplex Concrete Piles (supra) and Samsung India Electronics Pvt. Ltd. (supra). 43. As seen above that Section 35E and 11A operate in different fields and are invoked for different purposes, we are merely concerned in this case with the interplay between Sections 11A and 35E. We are also concerned with what happened in the form of an adjudication under Section 11B. What happens in a case wherein adjudication takes place under Section 11B and authorities do not take recourse available to them, whether after having allowed adjudication under Section 11B to attain finality, was there any remedy available to department at all under Section 11A to proceed. 44. This question was considered and decided in Eveready Industries (supra), wherein the Court held that two valuable rights, one in the form of right of appeal and another in form of order of refund, are now sought to be taken away indirectly by taking recourse to Section 11A. What cannot be done directly cannot be done indirectly also. 45. Thus, the department, once the adjudication has taken place under Section 11B cannot proceed to recover on the basis of erroneous refund under Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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