2018 (10) TMI 948 - AT - Central Excise

Refund claim - whether without challenging assessment orders of refund claims, refund can be challenged by way of issuance of show cause notice under Section 11A of the Act or not? - Held that - The said issue is exempted by the Hon ble High Court of Gauhati in the case of Jellalpur Tea Estate 2011 (3) TMI 11 - GAUHATI HIGH COURT , where it was held that without challenging the said refund claim in appeal, show cause notice cannot be issued under Section 11A of the Act - the provisions of Section 11A of the Act are not applicable to the facts of this case. Demand not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge of refund claims sanctioned without appeal, Invocability of extended period of limitation

Analysis:
The appellant, engaged in manufacturing Aluminium Wire Rod, availed exemption under Notification No. 56/2002-CE due to being located in Jammu & Kashmir. They cleared goods inclusive of outward freight charges, paying duty through PLA after exhausting Cenvat credit. Refunds were allowed for specific periods but show cause notices were issued to deny self-credit of duty paid on freight from assessable value, claiming excess refund claims were recoverable. The matter was adjudicated, with demand confirmed but later dropped by the Commissioner (Appeals) due to non-invocability of extended period. The appellant challenged this decision.

The appellant argued that since refund claims were initially sanctioned and not challenged, show cause notices under Section 11A of the Act cannot be issued, citing a Gauhati High Court case. The AR contended that the appellant intentionally paid duty on transportation charges to avail inadmissible refunds, justifying the invocability of the extended period of limitation.

After hearing both sides, the Tribunal considered the issue of challenging refund claims sanctioned without appeal. Citing the Gauhati High Court's observation in a similar case, the Tribunal held that Section 11A of the Act was not applicable in this scenario. Consequently, the demands against the appellants were deemed unsustainable. The appeal by the appellant was allowed based on this analysis.