2019 (3) TMI 941 - AT - Central Excise

Recovery of erroneous refund/rebate - Section 11A of CEA - recovery sought on the ground that appellant have neither received the inputs covered under the duty paying cenvatable documents nor sent to the job worker for getting the final product manufactured - Held that - The adjudicating authority confirmed the demand mainly on the ground that the process carried out by the job worker is amount to manufacture whereas as per para 4 of notification 21.2004-CE(NT) the job worker are authorized only to carry out the activity such as test, repairs, refining, reconditioning or manufacture of intermediate products - It is observed that these charges were not raised either at the time of sanction of refund/rebate nor even in the SCN which is a subject matter of this case. The matter was reached up to the Tribunal and thereafter remanded to the Ld. Commissioner for de novo adjudication. At the stage of de novo adjudication, raising a fresh issue which is not existing within the four corners of the allegation made in the SCN, is not permitted under the settled law. Matter remanded to the adjudicating authority for passing a fresh order without going into the issue which are not existing in the SCN - appeal allowed by way of remand.

Summary

Issues: Recovery of erroneous refund under Section 11A

Analysis:
The case involves the recovery of an erroneous refund under Section 11A due to the appellant not receiving the inputs covered under the duty-paying documents or sending them to the job worker for manufacturing the final product. The appellant's credit availed is deemed inadmissible, leading to the rebate obtained under Rule 18 being incorrect and illegal. The Ld. Counsel argued that the Commissioner's de novo adjudication delved into issues beyond the scope of the show cause notice (SCN) and the Tribunal's remand order. Specifically, the Commissioner examined the nature of the job worker's process, which was not part of the original allegations. The demand for refund recovery was based on the non-receipt of inputs covered by duty-paying invoices, not on the job worker's manufacturing process. The Tribunal found that the de novo adjudication introducing new issues not raised in the SCN was impermissible under established law. Consequently, the impugned order was set aside, and the matter was remanded to the adjudicating authority for a fresh decision within the original scope of the allegations and the Tribunal's previous directions.

Judgment:
The Tribunal, comprising Mr. Ramesh Nair and Mr. Raju, held that the Ld. Commissioner's decision to consider new issues in the de novo adjudication, beyond the allegations in the SCN, was not permissible. The Tribunal emphasized that the Commissioner's fabricated allegations outside the original scope rendered the entire de novo adjudication futile. As a result, the impugned order was overturned, and the matter was remanded to the adjudicating authority for a fresh decision while adhering to the issues raised in the SCN and considering the Tribunal's earlier directions from 25.06.2014. The Tribunal allowed the appeals by remanding the case to the adjudicating authority, keeping all issues open for reconsideration. The judgment was pronounced in open court on 21.02.2019.