9911796707
TMI Blog2006 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... 624/06. 3. The facts of the case may be summed up in the following manner :- M/s. Shree Fats Proteins Private Limited are engaged in the manufacture of edible oil Vanaspati oil for which the appellants have been using various raw materials and inputs including crude palm oil. In the normal course of business, on 2-8-2001, the appellants have imported 500 MT of crude palm oil and cleared the same to the warehouse by filing In-Bond Bill of Entry Nos. 1781 and 1782. Thereafter, the appellants have cleared 250 MT of crude palm oil lying in bond on the basis of tariff value of US$ 337 PMT by paying appropriate duty. By Notification No. 52/2001 dated 9-10-2001, the Central Government reduced the tariff value of crude palm oil from US$ 337 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23-9-2005. Aggrieved by the same, the appellants have filed an appeal before the Commissioner (Appeals) but the same has been dismissed. Aggrieved by the impugned order passed by the Commissioner (Appeals), the present appeals are filed along with stay application. 4. The main contention of the learned Counsel for the appellants is that the department cannot issue a show cause notice after the period of one year from the date of granting refund. The refund was granted to the appellants on 25-9-2002 whereas the show cause notice has been issued on 16-6-2005 without invoking the larger period as well as without mentioning that the appellants made willful mis-statement or suppressed any facts of the case before the authority. In support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). - It is observed that In order to make a demand under section 11A of the Central Excises and Salt Act for beyond a period of six months and upto a period of five years something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required to be established. Where department had full knowledge about the facts and the manufacturer s action or inaction is based on their belief that they were required or not required to carry out such action or inaction, the period beyond six months cannot be made applicable. (3) Collector of Central Excise v. H.M.M. Limited - 1995 (76) E.L.T. 497 (S.C.). - It is observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result in recovery the erroneous refund. This order should be followed by a show cause notice under section 11A, according to which the show cause notice should be issued within six months from the date of actual refund. Since the time limit, for filing an appeal under section 35E(2) is longer than the time limit prescribed under section 11A, the show cause notice should precede the proceedings under section 35E(2), otherwise, the order under section 35E(2) becomes an empty formality and is not enforceable. Similarly, even if the show cause notice is issued for recovering the erroneous refund within the time limit prescribed under section 11A without setting aside the order granting erroneous refund under section 35E(2), no erroneous refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962, indicating therein the ground of short-levy, etc. No amount of duty short-levied can be collected without such a notice. The exercise of reviewing the order under section 129D of the Customs Act provides no saving to the department against the requirements of issue of show cause notice under section 28. Therefore, even if one were to assume a favourable result in department s favour on the appeal filed, in terms of section 129D, even then, the same would not help the revenue to collect the duty which escaped as a result of wrong decision on the valuation, without issuing a demand under section 28 of the Act. Therefore, we are unable to agree with the findings of the Commissioner (Appeals) holding that, on conclusion of proceedings un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is observed that The exercise of reviewing the order under section 129D of the Customs Act provides no saving to the department against the requirements of issue of show cause notice under section 28. The Hon ble Gujarat High Court has confirmed the views expressed by the Tribunal in the above cited case. The same view was also followed by the Tribunal in the case of Sree Digvijay Cement Co. Ltd. v. Collector of Central Excise and Doothat Tea Estate Kanoi Plantation (P) Ltd. v. CCE, Shillong cited (supra) observing that the order under section 35E(2) does not automatically result in recovery of refund. This order should be followed by issuance of show cause notice under section 11A within six months from the date of actual refund. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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