2018 (9) TMI 1198 - AT - Central Excise

Refund claim - assessment orders of refund claims not challenged - whether refund claims can be challenged by way of issuance of show cause notice under Section 11A of the Act or not? - Held that - Wthout challenging the said refund claim in appeal, show cause notice cannot be issued under Section 11A of the Act as held by Hon ble High Court of Gauhati in the case of CCE, Shillong vs. Jellalpore Tea Estate 2011 (3) TMI 11 - GAUHATI HIGH COURT - 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 to show cause notice under Section 11A for refund claims sanctioned without appeal.

Analysis:
The appellant, engaged in manufacturing metal containers in Jammu & Kashmir, availed exemption under Notification No. 56/2002-CE. They cleared goods with outward freight charges and paid duty through PLA after exhausting Cenvat credit. Refund was allowed for the period 2005-2008, but a show cause notice was issued to deny self-credit of duty on freight charges. The matter was adjudicated, and demand for erroneous refund was confirmed. The Commissioner (Appeals) held that the extended period was not applicable, dropping the demand. The appellant appealed to the Tribunal.

The appellant argued that the refund claims were sanctioned correctly as outward freight was part of the transaction value, citing a Gauhati High Court case. They contended that without challenging the refund claims in appeal, a show cause notice under Section 11A cannot be issued. On the contrary, the respondent claimed that the appellant intentionally paid duty on transportation charges to avail inadmissible refunds, justifying the use of the extended period of limitation.

After hearing both sides, the Tribunal considered the issue of whether refund claims, once sanctioned, could be challenged without appealing the assessment orders. Citing the Gauhati High Court case, the Tribunal held that Section 11A was not applicable in this scenario. The Court emphasized that statutory remedies must be exhausted before resorting to Section 11A. Consequently, the demand against the appellant was deemed unsustainable, leading to the appeal being allowed.

In conclusion, the Tribunal allowed the appeal, emphasizing the importance of following statutory procedures and exhausting available remedies before resorting to Section 11A for challenging refund claims.