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2010 (2) TMI 293 - AT - Service TaxRecovery of erroneous refund appellant submitted that without challenging the order-in-original it is not open to the revenue to deny refund. It was submitted that since the refund was granted as a consequential relief in the absence of challenge to the order of adjudicating authority the issue of refund had attained finality and it could not have been kept open by invoking jurisdiction u/s. 11A of the said Act. - Held that - it is amply clear that the erroneous refund sanctioned under an order can be recovered by invoking provisions of Section 11A of the Central Excise Act without taking recourse to provisions of Section 35E of the Act and filing appeal against the order pursuant to which the refund was initially sanctioned. In the circumstances the impugned order has been passed in accordance with law; the same is upheld.
Issues Involved:
1. Erroneous Refund and Unjust Enrichment 2. Limitation and Jurisdiction for Recovery of Refund 3. Applicability of Section 11A of the Central Excise Act 4. Procedural Compliance under Section 35E of the Central Excise Act 5. Binding Nature of CBEC Circulars 6. Judicial Precedents and Consistency in Decisions Detailed Analysis: 1. Erroneous Refund and Unjust Enrichment: The appellants, M/s. Ogilvy & Mather Pvt. Ltd., were initially sanctioned a refund of Rs. 4,48,188/- for excess service tax paid during January to December 1997. However, the original authority later deemed this refund erroneous, citing unjust enrichment, as the excess tax had been passed on to buyers through credit notes. This was in line with the Apex Court's judgment in the Rajasthan Spinning & Weaving Ltd. case, which held that refunds passed on to buyers still constituted unjust enrichment. 2. Limitation and Jurisdiction for Recovery of Refund: The Assistant Commissioner initially rejected the refund claim on the grounds of limitation, which was upheld by the Commissioner (Appeals). However, the Tribunal remanded the case, leading to a sanction of the refund. Subsequently, a show cause notice was issued to recover the refund, claiming it was erroneously sanctioned. The impugned order confirmed this recovery along with interest for delayed payment. 3. Applicability of Section 11A of the Central Excise Act: The appellants argued that without challenging the Order-in-Appeal No. 137/2004, the department could not issue a show cause notice under Section 11A for recovery of the refund. However, the Tribunal upheld that Section 11A could be invoked independently to recover erroneous refunds without the need to first appeal against the refund sanction order. This was supported by precedents such as Bharat Box Factory Ltd. v. CCE and Orissa Cement Ltd. v. CCE, which held that Section 11A is a substantive provision for recovery of erroneous refunds. 4. Procedural Compliance under Section 35E of the Central Excise Act: The appellants contended that the department should have followed the review procedure under Section 35E before issuing the show cause notice under Section 11A. However, the Tribunal found that Section 11A could be invoked directly for recovery without necessitating a prior review under Section 35E. This was consistent with the judicial interpretation that Sections 11A and 35E are independent provisions. 5. Binding Nature of CBEC Circulars: The appellants cited CBEC Circular No. 423/56/98-CX, which clarified that mere review under Section 35E was insufficient for recovery of erroneous refunds. The Tribunal, however, found that the Circular did not negate the applicability of Section 11A for recovery purposes, and the impugned order was not contrary to the CBEC instructions. 6. Judicial Precedents and Consistency in Decisions: The Tribunal considered various judicial precedents, including decisions in VBC Industries Ltd. v. U.O.I and Madras Rubber Factory Ltd. v. Assistant Collector of Central Excise, which were found not applicable to the instant case. The Tribunal relied on the Bombay High Court's judgment in Indian Dyestuff Industries Ltd. v. Union of India, which upheld the validity of invoking Section 11A for recovery of erroneous refunds without the need for prior appellate proceedings. Conclusion: The Tribunal upheld the impugned order, confirming the recovery of the erroneously sanctioned refund along with interest. The appeal was dismissed, affirming that the recovery was in accordance with law and consistent with judicial precedents. The judgment emphasized that Section 11A is a substantive provision for recovery of erroneous refunds and does not require prior review under Section 35E. The Tribunal also noted that the original authority had no power to review its own order post-sanction, reinforcing the finality of the recovery proceedings initiated under Section 11A.
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