2018 (9) TMI 1127 - AT - Central Excise

Refund claim - assessment orders not challenged - Section 11A of Central Excise Act - area based exemption availed - N/N. 56/2002-CE dated 14.11.2002 - Held that - The issue emerges before us is that, as refund claim was sanctioned to the appellant, and without challenging those assessment orders of refund claims sanctioning thereof, can be challenged by way of issuance of show cause notice under Section 11A of the Act or not - the provisions of Section 11A of the Act are not applicable to the facts of this case - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge of refund claim sanctioning and applicability of Section 11A of the Act.

Analysis:
The appellant, engaged in manufacturing Air Conditioners under CETH No. 84, availed exemption under Notification No. 56/2002-CE due to their location in Jammu & Kashmir. They cleared goods inclusive of outward freight charges, paying duty through PLA after exhausting Cenvat credit. A show cause notice in 2010 was issued to deny self-credit of duty paid on freight portion from assessable value, claiming excess refund as recoverable. The matter was adjudicated, with demand for erroneous refund confirmed but dropped for April 2008 to March 2009 due to non-invocation of extended period by the ld. Commissioner (Appeals).

The appellant argued that the refund claim was rightfully sanctioned as outward freight was part of the transaction value, citing a Gauhati High Court case. They contended that without challenging the refund claim in appeal, a show cause notice under Section 11A cannot be issued. Conversely, the respondent argued that duty was paid on transportation charges deliberately to avail inadmissible refund, justifying the invocation of the extended period of limitation.

After considering the submissions, the Tribunal analyzed whether challenging refund claims sanctioning without appeal can lead to a show cause notice under Section 11A. Referencing the Gauhati High Court case, the Tribunal concluded that Section 11A was inapplicable in this scenario. They emphasized that statutory remedies must be availed as prescribed by law, and circumventing the process through Section 11A was impermissible. Consequently, the demand against the appellant was deemed unsustainable, leading to the allowance of the appeal.

In conclusion, the Tribunal allowed the appeal filed by the appellant, highlighting the inapplicability of Section 11A in challenging refund claims without appeal and emphasizing adherence to statutory procedures for dispute resolution.