TMI Blog2023 (10) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Apex Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] , it does not mean that at the time of sanctioning of refund claim, the decision of the Hon ble Apex Court in the case of SRD Nutrients was valid. As the decision of Hon ble Apex Court in the case of SRD Nutrients during the relevant period holding the field, in that circumstances, the refund claims were rightly sanctioned to the appellants as held by the Hon ble High Courts in the above-cited decisions namely TRIPURA ISPAT (A UNIT OF LOHIA GROUP) VERSUS UNION OF INDIA, COMMISSIONER, CENTRAL GOODS SERVICE TAX, ASSISTANT COMMISSIONER, CENTRAL GOODS SERVICE TAX [ 2021 (1) TMI 753 - TRIPURA HIGH COURT] , theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others [2019-TIOL- 528-SC-CX-LB] have turned down the decision of this Tribunal in the case of SRD Nutrients (supra) and held that assessee is not entitled to avail refund of education cess or higher education cess. Consequent to the decision of Hon ble Apex Court in the case of Unicorn Industries (supra), protective show cause notices were issued to the appellants for recovery of the erroneous refund sanctioned to the appellants of education cess or higher education cess. The adjudicating authority confirmed the demand. Aggrieved from the said order, the appellants are before us. 5. Heard the parties. 6. The facts of the case are not in dispute, therefore, the issue arises before us is that in case whether that the refund claim has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner seek recovery of refund already granted. [11] In this context, we may first refer to Section 11A of the Central Excise Act. It pertains to recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Relevant portion of this Section reads as under : (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 excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or the rules with intent to evade payment of duty and in cases where none of these elements is present. Under sub-section 1 of Section 11A when any such duty of excise has not been levied, paid or short levied or short paid or erroneously refunded for reasons other than fraud, collusion etc. the Central Excise Officer would within 2 years from the www.taxguru.in Page 11 of 17 relevant date serve a notice on the person chargeable to the duty calling upon him to show cause why the amount specified in the notice along with interest not be recovered. Sub-section 1 of Section 11A thus authorizes the Central Excise Officer to recover any duty of excise, besides others, which has been erroneously refunded. It is in this context that the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been decided. If years later such view is reversed, the parties who had not carried the proceedings in higher forum and thus not kept the proceedings alive, cannot trigger a fresh look at the decision already rendered by the competent court on the basis of the previous judgment of the Supreme Court which was correctly applied at the relevant time . 8. We find that refund claims were sanctioned in the light of the decision of the Hon ble Apex Court in the case of SRD Nutrients (supra) and thereafter the decision of SRD Nutrients (supra) was over-ruled by the Hon ble Apex Court in the case of Unicorn Industries (supra), it does not mean that at the time of sanctioning of refund claim, the decision of the Hon ble Apex Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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