2003 (10) TMI 66 - HC - Central Excise

Review - refund claim - duty paid on sodium hypochlorite - HELD THAT - It is pointed out that this contention is advanced on the ground that the respondent has no power of review of his ow n orders. In this respect the learned Counsel is well-founded in his contention as has been held by Shivraj Patil J. in the case of India Pistons Limited v. Asstt. Collector of Central Excise 1998 (9) TMI 98 - HIGH COURT OF JUDICATURE AT MADRAS . Thus it follows automatically that the respondent has no power of review. If the respondent has no power of review of his earlier orders the impugned order in this writ petition is one without any jurisdiction and is liable to be quashed. The impugned order is quashed and the writ petition is allowed.

Summary

Issues Involved:
The issues involved in the judgment are the authority of the respondent to review his own order, the legality of passing the impugned order for recovery of refund, and the jurisdiction of the respondent to sanction the refund.

Authority to Review Own Order:
The petitioner sought a Writ of Certiorari to quash the records culminating in the impugned order of the respondent. The respondent had passed an order holding that the refund claim made by the petitioner stands settled by way of adjustment in duty payable by the assessee himself. The respondent later issued a notice to recover the refunded amount under Section 11A of the Central Excises and Salt Act, 1944. The petitioner contended that the respondent had no authority to review the earlier order, which had reached finality. The impugned order was challenged as being without jurisdiction. The Court held, based on precedent, that unless the statute expressly confers the power of review, it cannot be assumed or exercised by the authorities. As there was no provision showing that the respondent had the power to review his own order, the impugned order was deemed to be passed without jurisdiction and was quashed.

Legality of Impugned Order for Refund Recovery:
The respondent passed an order to recover the refunded amount from the petitioner under Section 11A of the Act and credit it to the consumer welfare fund. The petitioner objected, arguing that the respondent had no authority to issue a show cause notice or revise the matter that had reached finality. The impugned order was challenged as being without jurisdiction. The Court held that the respondent did not have the authority to review his own order, as there was no provision conferring such power. The impugned order was deemed to be without jurisdiction and was quashed.

Jurisdiction to Sanction Refund:
The petitioner had made a claim for the refund of central excise duty paid on sodium hypochlorite. The respondent initially held that the refund claim stood settled by way of adjustment in duty payable by the assessee. The petitioner claimed the refund setting off the earlier payments made erroneously. The respondent passed an order to recover the refunded amount from the petitioner under Section 11A of the Act. The petitioner contended that the respondent had no authority to review the earlier order. The Court held that in the absence of any specific provision conferring the power of review, the impugned order was passed without jurisdiction and was liable to be quashed.