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TMI Blog1988 (5) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... der orders of the Collector of Central Excise, Coimbatore by virtue of Section 35E(2) of the Central Excises and Salt Act, 1944, made an application to the Collector of Central Excise (Appeals), Madras and submitted that the assessees had not been able to establish that the goods, radiators, coolers, heat exchanger, had been used as parts of diesel engines and that the officer deputed for verification had not been able to get evidence that the goods in respect of which the refund claim was sanctioned were used as parts of diesel engines, or were parts of diesel engines. There was no proof that the goods were exclusively used as parts of diesel engines and, therefore, the respondents were not entitled to exemption under Notification No. 55/7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oblem is quite different from how the concerned people have seen it. 5. The Central Excises and Salt Act, 1944, has one section which authorises recoveries of duty erroneously refunded and this is Section 11A. It provides that (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded a Central Excise Officer, may within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. This is the fundamental and only authority in the law that perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 28,861.27, this was the only way that the refund could have been paid and it is this amount that later formed the bone of contention between the two sides when the Collector of Central Excise came to the conclusion that the refund was erroneous and he set about taking steps to recover it. For this purpose, in exercise of the powers given to him under Section 35E(2) of the Act, he directed the Assistant Collector, to make an application to the Collector of Central Excise (Appeals), Madras, which was duly carried out by the Assistant Collector. That application was heard and adjudicated upon by the Collector (Appeals). 8. When the Collector (Appeals) heard the matter, he came to the conclusion that the notice he served on the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to the Assistant Collector to issue notices if any money representing duty is found to have been lost by mistaken refund. There is no other coarse for the authorities to the recovery of such duty. 11. I can see an objection coming forward to this, that the Assistant Collector would be seeking to review his own order If he seeks to recover erroneously refunded duty. After all, Section 11 -B allows only the Assistant Collector to make refunds and, therefore, when he himself issues notice under Section 11 -A for return of the erroneous refund, he is silting in judgment over his own action. This is a difficulty that I see no means of surmounting - but that is how the law frames it. If the objection prevails, then obviously no erroneously re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35-E application, and that the time-limit will virtually come to mean one year or more. 14. The protective time-limit of Section 11 -A cannot be surprised from the rear or taken from the flanks, because it runs all round, a secure and sure guard - it is a wall of defence. We must not breach it or attempt to scale it - it provides invaluable services, often in ways we do not always appreciate. 15. Section 35-A second proviso in fact is designed to protect the assessee from just such exaction's as may be made when the department finds its demands under Section 11 -A barred by time. It prohibits the Collector (Appeals) from passing an order requiring a person to pay any duty which he (Collector) may discover, during the appeal proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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