2002 (1) TMI 176 - AT - Central Excise

Summary

Issues:
1. Stay application for waiving pre-deposit of Rs. 25,000
2. Refund claim under Rule 173H converted to claim under Rule 173L
3. Time limit for filing refund claim under Section 11B
4. Department's attempt to recover refunded amount
5. Legal process for recovery of erroneous refund

Analysis:
1. The case involves a stay application for waiving pre-deposit of Rs. 25,000 which was sanctioned as a refund and adjusted towards pending recovery. The Tribunal decided to waive the pre-deposit and proceeded to decide the main appeal.

2. Initially a show cause notice was issued regarding the refund amount of Rs. 25,000 under Rule 173H. The refund claim was later converted into a claim under Rule 173L due to the need for complete remodelling. The appellants had filed multiple refund claims, with the last one filed on 28-3-97, which was within six months of the re-entry of the goods.

3. The Commissioner (Appeals) held that the refund claim was time-barred as it was filed beyond the six-month limit from the date of re-entry of the goods. The consultant for the appellants argued that the refund claim was filed within the required time frame and that the department cannot demand the refunded amount after six months.

4. The department attempted to recover the refunded amount through a review order under Section 35E(2), which was challenged by the appellants. The consultant argued that such recovery attempts must be made within six months of the initial payment and that no notice was issued within this timeframe.

5. The consultant relied on previous judgments to support their argument that recovery of erroneous refunds must follow the legal process under Section 11A of the Central Excise Act, 1944. The department's attempt to recover the refunded amount through a review order was deemed incorrect and out of time by the consultant.

In conclusion, the Tribunal found that the refund claim was not time-barred and that the department's attempt to recover the refunded amount through a review order was not permissible. The matter was remanded to the original authority for further consideration, allowing the appellants to produce necessary evidence. The appeal was allowed by way of remand.