9911796707
TMI Blog1999 (1) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted refund of Rs. 1,28,970.00 and Rs. 52,914.00 to the respondents herein. Thereafter, two appeals were filed by the Department before the Commissioner (Appeals) against orders dated 24-8-1995 and 30-8-1995 passed by the Assistant Commissioner of Central Excise, Calcutta-I on 24-6-1996 and 28-6-1996 respectively, in terms of Section 35E(2) of the Central Excise Act, 1944. 3. The Commissioner of Central Excise (Appeals) vide his Order-in-Appeal dated 15-9-1997 rejected the appeals of the Revenue by observing that as no show cause notice has admittedly been issued within a period of six months in terms of Section 11A of Central Excise Act, 1944, the proceedings initiated against the assessee by the Department were considered as infructou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od, the appeal was infructuous. He prays for allowing the appeal. 5. Shri P.K. Chatterjee, learned Advocate appearing for the respondents submits that the issue is no more res integra and has been settled by the Supreme Court in various decisions and is being followed by the Tribunal. He refers to the Tribunal s decision in the case of Fag Precision Bearings Ltd. v. Commissioner of Central Excise and Customs reported in 1998 (25) RLT 528. After considering the various decisions, it was held in the said case that the issue of notice under Section 11A within the prescribed time-limit is necessary for recovery of refund amount erroneously sanctioned, notwithstanding review action taken under Section 35E. He also drew attention to another dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excises Act. The Board s Circular as relied upon by the respondents has referred to the Law Ministry s case and has accepted the said decision of the Tribunal and no appeal has been filed against the same. Similar is the position in respect of the other decision of the Tribunal in the case of Rose Mount (I) Ltd. In both these decisions, the judgments mentioned by the Revenue in their memo of appeal have been referred to and discussed. Accordingly, I hold, by following the ratio of these two judgments that a show cause notice is required to be issued under Section 11A for recovery of erroneous refund, notwithstanding the review of the Assistant Commissioner s order under Section 35E. However, the ratio of these decisions is that the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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