TMI Blog2002 (1) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... efund amount of Rs. 25,000/- should not be sanctioned and credited to the Consumer Welfare Fund in terms of Section 11B read with Section 12B of the Central Excise Act, 1944 in as much as the incidence of excess duty has been passed on to their customers. After receipt of reply, the AC was satisfied that this incidence of excess duty has not been passed on to their customers and after sanctioning the refund amount, he adjusted the amount of Rs. 25,000/- towards total arrears of Rs. 72,521/-. 3. Aggrieved by this order, Revenue went in appeal to the Commissioner (Appeals) who vide his order had stated the facts from the records that appellants had cleared the said machinery on payment of duty of Rs. 25,000/- vide invoice No. 18, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the machinery was rejected by the customers and they had filed D3 declaration under Rule 173H. Later they found that remodelling is required to be done on this machinery. Therefore, they applied for extension of time under Rule 173L and the same was granted by the Commissioner vide his C. No. V/18/84/55/96, dated 31-7-98. This permission was applied before carrying out re-modelling process but it was received later by them and therefore they had completed re-modelling within the extended period. He further submitted that in para-3, internal page-2 of the AC's order dated 11-3-98 it has been mentioned that as it would not be possible to complete the re-processing within six months, assessee applied for extension of time of another six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the refund amount so sanctioned to them by the department and adjusted towards payment of arrears of duty. 6. Ld. Consultant relies on the judgment by West Zonal Bench, Mumbai Bench rendered in the case of Rose Mount (India) Ltd. v. CCE, Ahmedabad reported in 1998 (99) E.L.T. 502 (T), in which it has been held that in the absence of notice under Section 11A for recovery of erroneous refund within the time prescribed therein, such recovery is hit by limitation and the appeal of assessee was allowed by the Tribunal in that case. He also relied on another judgment of the Tribunal in the matter of CCE v. Universal Radiators Ltd. - 1988 (37) E.L.T. 222 (T), in which it has been held that notice under Section 11A of the C.E. Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled beyond the scope of the show cause notice as well as the scope of adjudication order in which the appellants were asked as to why refund amount should not be sanctioned and credited to the Consumer Welfare Fund account. The AC later found that incidence of duty has not been passed on to the customers and after sanctioning the refund claim, he adjusted the same towards the arrears which were pending against them. We find that the refund claim was not time barred as it was filed immediately within six months i.e. 26-3-97 whereas the remodelled machinery was cleared on 7-12-96. Secondly, the department cannot demand the refunded amount after a lapse of six months by a review order under Section 35E(2). Such orders involving refund have to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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