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TMI Blog2007 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the Commissioner vacated the order of the original authority. The original authority had confirmed the demand of Rs. 3,31,365/- being erroneous refund granted to the respondents M/s. Eveready Industries (I) Limited (Eveready). The original authority had ordered recovery of the disputed amount on the ground that Eveready had failed to establish with documentary evidence that they had not collected the said amount from their customers. 2. The facts of the case are that provisional assessment of clearances of dry cell batteries made by the respondents during 19-12-1985 to 31-3-1997 was finalized by the jurisdictional Assistant Commissioner vide his Order-in-Original No. 78/97 dated 22-12-1997. An amount of Rs. 56,02,541/- was quantified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Act, 1944 and demand under Section hA alone did not suffice to recover the alleged erroneous refund. In finding so, the Commissioner followed the decision of the Tribunal in the case of Sree Digvijay Cement Co. Ltd. v. CCE reported in 1991 (52) E.L.T. 631 (T). He also accepted the contention of the respondents that the refund had arisen as a result of finalization of provisional assessment and hence did not attract unjust enrichment in view of para 95 of the Apex Court's judgment in the case of Mafatlal Industries Ltd. v. UOI reported in 1997(89) E.L.T. 247 (S.C.). 3. The Revenue has canvassed its prayer to vacate the impugned order on the ground that the refund had been sanctioned by the Assistant Commissioner without examining the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final assessment thereof. He cited the decision of the Supreme Court in the case of CCE, Bhubaneshwar v. Re-rolling Mills reported in 1997 (94) E.L.T. 8 (S.C.) and submitted that the Apex Court had held that Show Cause Notice could be issued under Section 11A of the Central Excise Act 1944 for demand of duty without reviewing the order/assessment under Section 35E of the Central Excise Act, 1944. This Bench in its decision in Roofit Industries Ltd. v. Commissioner of Central Excise, Chennai [2005 (191) E.L.T. 635 (Tri-Chennai)] had followed the ratio of the above judgment. 5. Ld. Counsel for the respondents cited the following case laws to argue that the impugned order was in accordance with law (a) Voltas Limited v. CCE, Hyderabad - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenging the refund order in terms of Section 35E of the Central Excise Act. We find that this challenge cannot be sustained in view of the judgment of the Apex Court in UOI v. Jain Shudh Vanaspati Ltd. reported in 1996 (86) E.L.T. 460 (S.C.). The ratio of this decision is to the effect that Show Cause Notice under Section 28 of the Customs Act could be issued for demand of duty without revising the order under Section 47 in terms of Section 130 of the Customs Act. In its judgment in CCE, Bhubaneshwar v. Re-Rolling Mills (supra) the Apex Court had held that Section 11A was pari materia with Section 28 of the Customs Act and that the ratio of Jain Shudh Vanaspati Ltd. (supra) applied to Central Excise cases also. Therefore, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall he adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries under sub- rule (5) of Rule 98 will not be governed by Section 11A or Section 11B, as the case may be. However, if final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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