TMI Blog2023 (3) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Section 35E of the Central Excise Act. Once the order in original sanctioning the refund came to be set aside in a proceeding under Section 35E of the Act and the proceedings under Section 35E was initiated within the time prescribed under Section 35E of the Act, thereafter there is no question of any further notice under Section 11A of the Central Excise Act as observed by the Tribunal affirmed by the High Court on quashing and setting aside the order in original sanctioning the refund in exercise of powers under Section 35E of the Act which otherwise is prescribed under the Act within the time stipulated under Section 35E of the Act, thereafter necessary consequence shall follow and thereafter there is no question of any refund pursuant to order in original. The impugned judgment and order passed by the High Court and that of the Tribunal are hereby quashed and set aside and the order passed by the Commissioner (Appeals), Mumbai dated 13.05.2005 is hereby restored - Appeal allowed. - M. R. SHAH And KRISHNA MURARI , JJ. For the Appellant : Mr. Mukesh Kumar Maroria , AOR For the Respondent : Mr. Anurag , AOR JUDGMENT M. R. Shah , J. 1. Feel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.320 of 1983. The Company also files application for stay of the operation of the judgment. On 15.03.1983, this Court passed an interim order in the following terms: In respect of future payment of Excise Duty there will be no stay. In so for as the post dues are concerned, 50% of the past dues shall be paid to the authority concerned within a period of 3 months from today. In regard to the balance 50% the appellants shall give bank Guarantee to the satisfaction of the Registrar of this Court within the same period. If the Bank Guarantee have already been given in any case in pursuance of the directions of the Delhi High Court it will continue in operation and shall be kept alive from time to time. 2.3 In pursuance to the interim directions granted by this Court on 15.03.1983, the bank guarantee given by the respondent company was kept alive from time to time. By final judgment and order dated 17.01.1995 this Court decided the case and inter alia directed that if notice under Section 11A has not been served the Revenue would be entitled to do so within the time limit prescribed by Section 11A of the Act. On the basis of the judgment and order passed by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (Appeals), Mumbai allowed the appeal filed by the Revenue by inter alia upholding grounds of unjust enrichment and time bar under Section 11B of the Central Excise Act. 2.4 Being aggrieved, the assessee filed the appeal before the Tribunal challenging the points of the merits upheld by the Commissioner Central Excise (Appeals) vide order in appeal dated 13.05.2005. Pending the said appeal and consequent to the order dated 13.05.2005, setting aside the Order-in-Original sanctioning the refund claim of Rs.2,96,14,264/- and in absence of specific stay against the said order in appeal, the Revenue proceeded with recovery of an amount of Rs.20,00,000/- by way of appropriation of refund claims payable to the assessee under O-I-O dated 04.01.2007. Therefore, in the pending appeal on 25.01.2007, the respondent assessee filed an application seeking directions to the Department to refund the said sum of Rs.20,00,000/- sanctioned to it by way of refund. That before the Tribunal, the assessee filed an application for additional grounds seeking to amend the appeal against the order in appeal dated 13.05.2005 on the following points of law: (i) No notice under Section 11A of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reliance placed by the Revenue on the decision of this Court in the case of Asian Paints (India) Ltd. (supra) was misplaced. 4.2 It is submitted by Ms. Bhati, learned ASG that in the case of Asian Paints (India) Ltd. (supra), this Court has specifically observed and held that Sections 35E and 11A of the Central Excise Act operate in different fields and are invoked for different purposes. It is submitted that it is observed that different time limits are, therefore, set out therein. It is submitted that in the said decision this Court has not accepted the submission on behalf of the assessee that the recovery of the excise duty cannot be made pursuant to an appeal filed after invoking the provisions of Section 35E if the time limit provided in Section 11A has expired. It is observed to so read the provisions would be to render Section 35E virtually ineffective, which would be impermissible. It is submitted that therefore the present case as such is clearly covered by the decision of this Court in the case of Asian Paints (India) Ltd. (supra). 4.3 It is further submitted by Ms. Bhati, learned ASG that even otherwise from the Scheme of the Central Excise Act, 1944, it is quit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 35E terminated in favour of the Revenue thereafter the necessary consequences shall follow and for recovery of any amount pursuant to the order passed under Section 35E of the Act there shall not be any separate notice issued under Section 11A of the Act as observed and held by the High Court as well as the Tribunal. Making above submissions it is prayed to allow the appeal. 5. While opposing the present appeal learned Senior Counsel appearing on behalf of the assessee has vehemently submitted that as such the Tribunal heavily relied upon the earlier decision in the case of Collector of Central Excise, Bhubaneshwar vs. Re-Rolling Mills, reported in 1997 (94) ELT 8. It is submitted that in the case of Re-Rolling Mills (supra) the Tribunal specifically observed and held that the time limit of Section 11A governs the issue of the demand under that Section and that Section alone and therefore if no demand in accordance with Section 11A is issued, nothing else can take its place. It is submitted that therefore the Tribunal took the view that the demand has to be issued for the erroneously refunded money within the time limit prescribed by Section 11A. 5.1 It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, as such stricto sensu it can be said to be giving effect to the order passed under Section 35E of the Act. As such the assessee is claiming the refund on the basis of O-I-O sanctioning the refund which as such has been set aside in the proceedings under Section 35E of the Central Excise Act. 7.2 Now so far as the submissions made on behalf of the Assessee relying upon the decisions of the Tribunal in the case of Re-Rolling Mills (supra) and Bajaj Auto Ltd (supra) that for refund of the duty a separate show cause notice under Section 11A of the Act is reviewed and that too within the time limit prescribed under Section 11A and that as such notice under Section 11A must precede within the time limit prescribed under Section 11A before the notice under Section 35E of the Act is concerned, as such the aforesaid issue is now not res integra in view of the direct decision of this Court in the case of Asian Paints (India) Ltd. (supra). 7.3 In the case of Asian Paints (India) Ltd. (supra), the decision which has been rendered subsequent to the decision of the High Court in the case of Bajaj Auto Ltd (supra) it is observed and held as under: We have read the judgments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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