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TMI Blog2019 (12) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessment order, an amount of Rs. 17,89,42,303/- was passed on to customer and excise duty deposited to the tune of Rs. 1,02,75,633/- was in excess. Assistant Commissioner further held after examining certificate submitted by CA of petitioner-Company that principle of unjust enrichment was not applicable to facts of the case. Order of provisional assessment became final as the department did not prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 show-cause notice under Section 11A of Excise Act, as provisions of Section 11A applies inter alia in case when there is a grant of "erroneous refund", while in the present case refund was granted in accordance with orders passed which attained finality and cannot be termed as erroneous to invoke Section 11A. 10. Reliance has been placed upon a judgment of Madras High Court in case of Eveready Industries Ltd. vs. Cestat, Chennai 2016 337 ELT 189 (Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 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-cause notice by respondent was based on mere change of opinion on the very same facts, only on account of a subsequent decision of Apex Court, which is not applicable in the present case. Issuance of notice under Section 11A amounted to reassessment as held in case of Shahnaaz Ayurvedics vs. CCE, Noida 2004 (173) ELT 337 (All. HC). 15. On question of reassessment, on basis of subsequent decision, reliance has been placed on a decision of Apex Court in case of CIT vs. Simplex Concrete Piles (2013) 11 SCC 373, and also on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rne 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 allowed refund to assessee. Relevant Paras 38 and 39 are quoted hereasunder:- "38. The respondent-Assessee is a 100 per cent export-oriented unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of Rs. 2,00,827/- on 14.08.2002 on the ground that it had paid excess excise duty @ 18.11 % instead of 9.20 %. The Assessee initially passed on the duty incidence to its customers. Later the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant on 02.08.2002. The refund claim was rejected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable. 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 dealers through invoices issued at the time of sale of products, thus, amount paid by dealers to petitioner is the discounted prices and incidence of excise duty on such discount remained with petitioner alone and is never shifted to dealer. 22. Per contra, Sri B.K.Singh Raghuvanshi, learned counsel appearing for the department submitted that order impugned dated 30.11.2017 is appealable before Commissioner (Appeals) in terms of Section 35 of the Act, as there is an alternative remedy available to the petitioner. He has relied upon a decision of the Apex Court in case of Union of India vs. Rubber Products Ltd. 2015 (326) ELT 232 (SC). 23. He further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of, (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon under section 11AA. ........ Explanation 1. - For the purposes of this section and section 11AC,- (a) "refund" includes rebate of duty of excise one xcisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) "relevant date" means,- (i) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid, and no periodical return as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 credited to the Fund : Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable good issued as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise and interest, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Central Excise in its order." 28. Thus, from the reading of provisions of Section 11A(1) of the Act, which provides for recovery of any duty of excise which has not been levied or paid or has been short levied or short paid or erroneously refunded. The recovery of such amount of excise duty can be made under Section 11A(1) irrespective of whether such non-levy or non payment or short levy or short payment or erroneously refund was on the basis of any approval, acceptance or assessment relating to rate of duty or on valuation of excisable goods under any other provisions of this Act or Rules made thereunder. 29. Section 35 of the Act provides for appeals to Commissioner (Appeals), wherein any person agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue and they attained finality. It was only after decision of the Apex Court in case of Addison and Company (supra) that show-cause notice was issued on 17.08.2017, and order was passed on 30.11.2017 directing the petitioner for refund of excise duty to be deposited in Consumer Welfare Fund. 33. A careful reading of Sections 11A, 11B, 35 and 35E would reveal that an application for refund as envisaged under Section 11B is not to be dealt as a ministerial Act or an administrative Act, rather an application has to be made by person claiming refund within a prescribed time and the application is to be accompanied by documents referred to in Sub-section (1) of Section 11B to establish that 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 has not been passed on by him to any other person. It is on the receipt of this application, Assistant Commissioner or Deputy Commissioner of Central Excise, if satisfied may make an order for refund. Thus, it is only after the adjudication of the application that an order of refund of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs for recovery under Section 11A (1). 38. This could lead to a situation where power of recovery under Section 11A is invoked by a subordinate authority despite the fact that refund application has been adjudicated upon by a superior authority under Section 11B. 39. Through plain reading of Section 35E, it is clear that limited revisional jurisdiction is conferred upon Principal Commissioner and Commissioner of Excise in sub-section (2) of Section 35E, this power is not actually to correct any error directly, but only available for directing the competent authority to take matter to the Commissioner (Appeals). Meaning thereby that it is always open to Principal Commissioner or Commissioner or Central Excise to examine the order passed by adjudicating authority under Section 11B and direct the competent authority to file appeal against order of refund. In the present case, order of refund was never taken to higher forum and it became final. 40. Decisions relied upon by the counsel for the revenue in case of Jain Shudh Vanaspati (supra) relates to proceedings which were vitiated by fraud. Further, the Apex Court recorded a clear finding that goods were cleared for home consumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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