TMI Blog2021 (10) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... w is involved - appeal dismissed. - Central Ex. Ap. No. 1 of 2020 - - - Dated:- 23-9-2021 - Biswanath Somadder, C.J. And H.S. Thangkhiew, J. For the Appellant : N. Mozika, SC and T. Sutnga, Adv. For the Respondents : D. Sahu, Adv. ORDER 1. The instant appeal has been preferred by the Revenue/Appellant under section 35G of the Central Excise Act against the judgment and order dated 18th December, 2019 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (CESTAT) in Appeal No. E/76154/2014, whereby the appeal filed by the respondent against the common adjudication order dated 31st March, 2014 and corrigendum dated 5th May, 2014 of the Commissioner of Central Excise, Shillong, was allowed. 2. The necessary facts, in brief, are that a certain notification, being notification No. 32/99-CE, dated 8th July, 1999, had been issued by the Government of India, Ministry of Finance, wherein it was proposed to exempt goods specified in the First and Second Schedule of the Central Excise Tariff Act, 1985, from payment of Excise duty from units located in North East India, as specified in the annexure to the said notification. This scheme provided fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd closures, metal containers, and mosquito coil, purchased more than 91% of the products of M/s. Ishaan Technologies Pvt. Ltd., Byrnihat. iii) That in the contrary it appears from the purchase accounts of M/s. Ishaan Technologies that they have/had regularly purchased raw material, components from the M/s. Manaksia Ltd. iv) That investigation revealed that both M/s. Manaksia Ltd. and M/s. Ishaan Technologies Pvt. Ltd. were managed and controlled by the same group of people. v) That it was alleged that M/s. Manaksia Ltd. in its own business/financial interest, set up a company called M/s. Ishaan Technologies Pvt. Ltd. to promote its own financial/business interest and to avail not only Central Excise refund, Income Tax and Sales Tax exemptions in the N.E. Region and Kutch region but also manipulated the Accounts in such a manner to help M/s. Manaksia Ltd. to inflate its Balance Sheet and avail excess Cenvat Credit and exemption. There was mutuality of financial/business interest of both the companies. Both the Companies were controlled by one family. M/s. Ishaan Technologies Pvt. Ltd. was not a separate entity but a dummy unit of M/s. Manaksia Ltd. All its operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order, thereafter preferred appeals before the Tribunal [Appeal Nos. E/76154/2014 (Ishaan Technologies Pvt. Ltd. Vs. CCE ST), E/76156-76160/2014 E/76174-76175/2014 (appeals by co-noticees), E/76094/2014 to E/76099/2014 (CCE ST, Shillong Vs. Manaksia Ltd.) and Appeal No. E/76155/2014 (Manaksia Ltd. Vs. CCE ST, Shillong)]. The said appeals were disposed of by the Tribunal by the common impugned judgment and order dated 18th December, 2019 and the appeals of Ishaan (respondent), the co-noticees and Manaksia Ltd., Kutch were allowed, whereas the appeals filed by the Revenue were rejected. 7. This judgment and order of the Tribunal dated 18th December, 2019, is now under consideration in the instant appeal. 8. Dr. N. Mozika, learned senior counsel assisted by Ms. L. Jana, learned counsel for the appellant, submits that the learned Tribunal (CESTAT) had ignored material and relevant facts and had not applied the legal principles in appreciating the matter and instead had dwelt on inconsequential facts, which has given rise to various substantial questions of law, that are to be adjudicated and examined by this Court. Learned senior counsel contends that the CESTAT erred in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is finally submitted that there is no substantial question of law that has arisen in the instant case. 10. Having heard the learned counsel and having examined the materials on record, especially the impugned judgment and order, it is palpably evident, on the face of the record itself, that there is no substantial question of law involved in this appeal. A bare reading of section 11A of the Act (as amended), clearly shows that the stipulation under this provision, can be exercised only if certain conditions precedent are present, as spelt out in section 11A, itself. For the sake of convenience relevant portion is reproduced hereinbelow to illustrate this fact:- 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 willful 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 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om October 2002 to December 2004 for clearances claimed to have been during March 2002 to November 2004. The said order of refund was not challenged by the Revenue. By the impugned order the Revenue has sought to recover an amount of ₹ 8,92,62,243/- out of the said refunded amount in terms of Section 11A(2) of the Act, pursuant to a show cause notice issued under the Proviso to Section 11A of the Act, as amount wrongly refunded under the said Notification No. 32/99-CE. A further sum of ₹ 53,05,582/- has also been confirmed against Ishaan as wrong cenvat credit availed and utilized in terms of Rule 12/14 of the Cenvat Credit Rules 2002/2004 read with Section 11A of the Act. 11.1 Herein also the jurisdictional Assistant Commissioner of Central Excise, Shillong Division, vide his order dated September 27, 2002, had held that Ishaan was eligible for exemption under the said notification by way of refund of duty paid from account current on the product allowed to be manufactured and cleared and accordingly, an amount of ₹ 10,21,61,696/- (of which the sum of ₹ 9,45,66,825.70 is a part) was refunded to Ishaan during the period October 2002 to December 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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