2011 (2) TMI 875 - AT - Central Excise

Refund claim - Exemption - Notification No.56/2002-CE dated 14.11.2002 - The respondents, sitauted at Jammu and Kashmir, filed refund claims on 11.12.2006 for ₹ 1,27,71,976/- on account of central excise duty paid through PLA for the month of November 2006 - Pursuant to the report received by the Range officer in favour of the refund of the amount of ₹ 1,27,71,976/-, the same was sanctioned by the said order dated 3.4.2009 - The Assistant Commissioner observed that the refund claim was erroneously sanctioned under the order dated 30.6.06 and therefore, was required to be recovered from the respondents. The Assistant Commissioner therefore, ordered appropriation of the said amount of ₹ 13,13,990/- which was required to be refunded under order dated 3.4.2009 - Since clause 2( c) specifically provides for refund on provisional basis and only in those cases empowers adjustment of such refund during the subsequent month - In the absence of provisional order on 30.6.06 and in the absence of power to review its earlier order, the lower authority had clearly erred in passing the order of appropriation of the amount and it had clearly exceeded its jurisdiction - Being so, do not find any case for interference in the impugned order passed by the Commissioner (Appeals) setting aside the order passed by the adjudicating authority.

Issues Involved:
1. Appropriation of CENVAT credit amount.
2. Compliance with Notification No. 56/2002-CE.
3. Validity of refund claim and its provisional or final nature.
4. Authority's power to review its own orders.
5. Proper procedure for recovery of erroneously refunded amounts.

Issue-wise Detailed Analysis:

1. Appropriation of CENVAT credit amount:
The Assistant Commissioner, Jammu, had ordered the appropriation of Rs. 13,13,990/- which was equal to the amount of CENVAT credit availed by the respondents in April 2006. This appropriation was challenged and subsequently set aside by the Commissioner (Appeals), Chandigarh. The Commissioner (Appeals) held that the recovery of the erroneously refunded amount could only be made by taking recourse to Section 11A and not by the short-cut method adopted by the adjudicating authority.

2. Compliance with Notification No. 56/2002-CE:
The respondents, engaged in the manufacture of Allopathic medicines, were availing the benefits under Notification No. 56/2002-CE. They filed refund claims for central excise duty paid through PLA for November 2006. The adjudicating authority found that the respondents had not availed CENVAT credit on 18 invoices issued in March 2006, thus failing to comply with the notification. The Assistant Commissioner observed that the refund claim was erroneously sanctioned and ordered the appropriation of Rs. 13,13,990/-.

3. Validity of refund claim and its provisional or final nature:
The respondents argued that the refund sanctioned on 30.6.06 was not provisional. The notification allows adjustments only for provisional refunds, and the records did not indicate that the refund was provisional. The adjudicating authority's order did not state that the refund was provisional, and there was no material evidence to suggest difficulty in completing verification. Therefore, the contention that the refund was provisional was not accepted.

4. Authority's power to review its own orders:
The adjudicating authority's attempt to recall the order dated 30.6.06 and appropriate the refunded amount was deemed a review of its earlier order. The authority did not have the power to review its own orders. The Commissioner (Appeals) correctly set aside the order of appropriation, emphasizing that the adjudicating authority had exceeded its jurisdiction.

5. Proper procedure for recovery of erroneously refunded amounts:
The Commissioner (Appeals) highlighted that any recovery of erroneously refunded amounts should be made by following the procedure laid down in Section 11A. The adjudicating authority's method of appropriation without issuing a show cause notice or affording the respondents an opportunity to contest the claim was improper. The circular No. 682/73/2002-CX also supports the view that adjustments are permissible only for provisional refunds.

Conclusion:
The Tribunal found no reason to interfere with the order passed by the Commissioner (Appeals) and rejected the appeal. The adjudicating authority had erred in ordering the appropriation of the amount without following the proper legal procedure and without having the power to review its own orders. The decision was in consonance with the provisions of Notification No. 56/2002-CE and the relevant circular.

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