2004 (6) TMI 454 - AT - Central Excise

Order of Commissioner (Appeals) - Legality of - Provisional refund - Demand - Provisional refund

Summary

Issues:
1. Confirmation of demand under Section 11A of the Central Excise Act, 1944 without imposing a penalty.
2. Proper course of action by the Commissioner when challenging the Assistant Commissioner's order.
3. Provisional refund and the issuance of notice under Section 11A of the Central Excise Act, 1944.

Analysis:

Issue 1:
The appeal was against the Order of the Commissioner confirming a demand of Rs. 16,09,687.00 under Section 11A of the Central Excise Act, 1944, without imposing any penalty. The appellant company had received a provisional refund under Notification No. 33/99-CE for completing an expansion of more than 25% of existing units. However, a show cause notice was issued alleging that the refund was claimed based on fabricated documents. The Commissioner confirmed the demand and directed payment of interest under Section 11AB but did not impose a penalty due to the absence of deliberate duty evasion.

Issue 2:
The appellant argued that the Commissioner should have reviewed the Assistant Commissioner's order instead of challenging it directly, as per Section 35E(2) of the Central Excise Act, 1944. The appellant contended that since the refund was provisional, no notice under Section 11A could be issued. Citing a judgment by the Hon'ble Madras High Court, the appellant claimed that invoking Section 11A on a provisional order was impermissible. The Commissioner's failure to identify the allegedly fabricated documents led the appellant to argue that the proceedings were based on presumption and assumption.

Issue 3:
During the hearing, it was noted that the proper course for the Commissioner to challenge the Assistant Commissioner's findings would have been to file an application under Section 35E(2) within the specified period. As the refund was provisional, the issuance of a notice under Section 11A was deemed improper, in line with the Madras High Court's ruling. Consequently, the Tribunal set aside the Commissioner's order, allowing the appeal filed by the appellant company.

This detailed analysis of the judgment highlights the key legal issues, arguments presented by the parties, and the Tribunal's decision based on the interpretation of relevant provisions and precedents.