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2021 (8) TMI 1169 - AT - Central ExciseRecovery of refund granted erroneously - section 11A of the Central Excise Act, 1944 - inordinate delay in adjudicating the show cause notice - violation of principles of natural justice - HELD THAT - Insofar as the show cause notice in the instant case is concerned, the same has been issued under Section 11A of the Act on 18.8.2004 but it was adjudicated vide Order-in- Original dated 28.3.2017. According to learned Consultant, the show cause notice dated 19.8.2004 was decided by the Order-in-Original dated 28.3.2017 but the same was handed over to the appellants only on 21.9.2017. Although in his submissions, learned Authorised Representative tried to justify the delay in passing the adjudicating order but there was not a whisper about it in the Adjudicating Order or in the impugned order. The Adjudicating Authority only mentioned that the personal hearing was held on 14.3.2017, without mentioning anywhere that due to the pendency of department s appeal before the Hon ble Court the hearing of the show cause notice was delayed. It is settled legal position that inordinate delay in adjudication results into denial of principles of natural justice. In the case in hand, the assessee cannot be blamed for delay as they had never delayed the proceedings. Adjudication proceedings have to be culminated within reasonable time and if not, it would be vitiated. The act on the part of Revenue of keeping the show cause notice pending for unduly long period is arbitrary and it would, in my opinion, vitiate the entire proceedings. Appeal allowed - decided in favor of appellant.
Issues involved:
- Delay in adjudicating the show cause notice - Legality of demanding/recovering refunded amount under Section 11A of the Act Issue 1: Delay in adjudicating the show cause notice The appeal was filed against the order dated 10.08.2018 passed by the Commissioner (Appeals), Central Excise, Cus & ST, Aurangabad. The Appellants had filed a refund claim of &8377; 36,893 based on an Order-in-Appeal dated 25.6.2003 passed by the Commissioner (A), C.Ex. & Customs, Aurangabad. The said refund claim was sanctioned by AC, C.Ex. vide Order-in-Original dated 17.12.2003. However, during the pendency of the appeal before the Tribunal, the department issued a show cause notice on 18.8.2004 demanding the refund granted to the Appellant erroneously. The Adjudicating Authority upheld the show cause cum demand notice by an Order-in-Original dated 28.3.2017, confirming the recovery of the refund along with interest. The learned Commissioner, in the impugned order dated 10.8.2018, rejected the appeal filed by the Appellant challenging the recovery. Issue 1 Analysis: The delay in adjudicating the show cause notice was a crucial issue raised in the appeal. The show cause notice dated 18.8.2004 was decided through an Order-in-Original dated 28.3.2017, but it was handed over to the appellants only on 21.9.2017. The learned Consultant argued that the delay in passing the adjudicating order after 13 years was illegal. The Adjudicating Authority failed to justify the delay adequately in the impugned order. The delay in adjudication, without any mention of the reason for the delay, raises concerns about the principles of natural justice. The Hon’ble High Court of Judicature at Bombay emphasized the need for expeditious adjudication of show cause notices to secure and recover public revenue. The court held that inordinate delays in adjudication would vitiate the proceedings. In this case, the delay in passing the adjudicating order was deemed arbitrary and against the principles of natural justice, thereby vitiating the entire proceedings. The appeal succeeded on this ground, and the Appellants were granted relief accordingly. Issue 2: Legality of demanding/recovering refunded amount under Section 11A of the Act The second issue raised in the appeal was regarding the legality of demanding/recovering the refunded amount under Section 11A of the Act. The learned Consultant argued that the refund order was never reviewed or appealed by the Revenue, making the demand for the erroneous refund illegal. On the other hand, the Authorised Representative for the Revenue contended that the demand for the erroneous refund was correctly issued under Section 11A of the Act, as it was settled only after the order of the Hon’ble High Court in 2016. Issue 2 Analysis: The legality of demanding/recovering the refunded amount under Section 11A of the Act was a contentious issue in the appeal. The learned Consultant argued that since the Revenue never reviewed or appealed the refund order, demanding the refunded amount was illegal. However, the Authorised Representative justified the demand under Section 11A, stating that it was settled only after the High Court's order in 2016. The Tribunal did not delve deeply into this issue as the appeal succeeded on the grounds of delay in adjudication. Therefore, the legality of demanding the refunded amount under Section 11A was not extensively discussed in the judgment. In conclusion, the Tribunal allowed the appeal primarily on the grounds of delay in adjudicating the show cause notice, emphasizing the importance of expeditious adjudication to uphold principles of natural justice. The judgment highlighted the need for timely resolution of disputes to ensure fairness and justice in legal proceedings.
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