9911796707
TMI Blog2011 (8) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... y refunded, should not be recovered from him. In such a case, there is no question of filing any appeal, as appropriate remedy as provided under Section 11A is available. Credit Notes issued on 7.8.91 - Duty paid on 17.7.89 - Held That:- When at the time of clearance no such document was filed and what is sought to be relied upon is a document issued after two years, the same raises a doubt and cannot be accepted as a reliable document. - Refund denied. Doctrine of merger - held that:- The Tribunal was also justified to rely on the decision of the Tribunal in S. Kumar’s Ltd. v. CCE, Indore [2007 -TMI - 1284 - CESTAT,NEW DELHI] in which reference was also made to the decision of the Supreme Court in Kunhayammed & Ors. v. State of Kerala (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the counsel appearing for the appellant were, however, refuted by the counsel appearing for the respondent, who has drawn our attention to the documents on record including the various orders passed by the authorities below as also the Tribunal. By relying on the provisions of Sections 11A, 11B and 12, he has submitted before us that the orders passed by all the authorities including the Tribunal are just and proper. 5. In the light of the aforesaid submissions made by the counsel appearing for the parties, the issue that arises for our consideration is whether the appellant can be said to be eligible for refund of the duty claimed by it in terms of Section 11B of the Central Excise & Salt Act, 1944. 6. The appellant herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t passed on. 8. After reply to the show cause notice was filed, the matter was considered by the Assistant Commissioner, who passed the order in original holding that the refund order was passed illegally and without jurisdiction. 9. In view of the aforesaid findings, it was ordered that the amount of Rs. 2,00,305/- which was erroneously refunded be recovered from the appellant in terms of Section 11A of Central Excise and Salt Act, 1944. 10. The aforesaid order was challenged by filing an appeal before the Commissioner (Appeals), who upheld the order of the Assistant Commissioner and the said order when challenged before the Tribunal was heard at length. The Tribunal by order dated 18-2-2003, dismissed the appeal and uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty, the competent authority may then issue such a show cause notice as provided for under Section 11 A, in which case the assessee has to show cause as to why the aforesaid amount of refund, which is erroneously refunded, should not be recovered from him. In such a case, there is no question of filing any appeal, as appropriate remedy as provided under Section 11A is available. 14. Therefore, in our considered opinion, the first contention of the counsel appearing for the appellant has no merit. 15. So far as the issuance of the credit note is concerned, the same was issued only on 7-8-1991 although the duty was paid on 19-7-1989 and, therefore, the credit note was issued after two years of the payment of the duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
