1999 (1) TMI 127 - AT - Central Excise

Summary

Issues:
- Whether a show cause notice within the time prescribed under Section 11A is necessary in case of erroneous refund even if revision/refund proceedings under Section 35E have been initiated.

Analysis:
1. The case involved appeals by the Revenue regarding the necessity of a show cause notice within the prescribed time under Section 11A for erroneous refunds despite revision/refund proceedings under Section 35E. The Assistant Commissioner granted refunds to the respondents, leading to appeals by the Department before the Commissioner (Appeals). The Commissioner (Appeals) rejected the appeals due to the absence of a show cause notice within six months under Section 11A, rendering the proceedings infructuous.

2. Shri R.K. Roy, representing the Appellant, argued that the reliance on certain Supreme Court decisions by the Commissioner (Appeals) was misplaced. He contended that Section 11A mandates a show cause notice for recovery of erroneous refunds, with a time limit of five years if conditions are met. He challenged the Commissioner's decision that the appeal was infructuous due to the absence of a notice within six months, urging for the appeal's allowance.

3. On the other hand, Shri P.K. Chatterjee, representing the Respondent, cited Supreme Court decisions and Tribunal rulings to support the necessity of a notice under Section 11A within the prescribed time limit for refund recovery, despite actions under Section 35E. He referred to Tribunal decisions and a Circular by the Central Board of Excise and Customs, emphasizing the requirement of a show cause notice within the specified timeframe.

4. After considering both sides' arguments and the cited judgments, the Tribunal concluded that a show cause notice under Section 11A is essential for recovering erroneous refunds, regardless of Section 35E actions. The Tribunal highlighted the need for issuing the notice within the time limits specified in Section 11A, either six months or five years under specific circumstances. As the Revenue failed to demonstrate issuing any notice within the prescribed periods to the respondents, the Tribunal rejected the Revenue's appeal and disposed of the cross-objections accordingly.