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TMI Blog2018 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded Rs. One crore SSI exemption limit, a show cause notice was issued, inter alia, proposing to demand duty of Rs. 3,82,431/-. The appellant paid the above amount under protest even before issue of show cause notice. In adjudication, the original authority vide order dated 22.9.2006 ordered that even after clubbing the value of all the group companies, it has not crossed Rs. One crore during the financial year 2003 04 and therefore ordered dropping of the proceedings proposed in the show cause notice and only imposed a penalty of Rs. 10,000/- in terms of Rule 25 of Central Excise Rules, 2002 for not maintaining proper accounts. The appellants filed refund claim on 15.12.2007 for the duty amount of Rs. 3,82,431/- paid by them under protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944. Reliance is placed on the following:- (a) Circular No. 423/56/98-CX dated 22.9.1998 (b) Commissioner Vs. Pricol Ltd. 2015 (320) ELT 703 (Mad.) (c) Patel Filters Vs. Union of India 2009 (234) ELT 444 (Guj.) upheld by the Hon'ble Supreme Court in Union of India Vs. Patel Filters Ltd. 2009 (241) ELT A95 (SC). 2.3 Alleged quantum of pipes produced (254824 Kgs.) has been explained in para 10.13 of the notice (page 27). It can be seen that the consumption norm adopted by the Revenue (27:13) is arbitrary and without any legal backing. It has been arrived at tentatively without reference to any daily production records or provision of law or any other corroborative evidence. 2.4 CENVAT credit on inputs and cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority found that while the refund claim has been filed beyond the stipulated period of one year, however as the entire amount was paid under protest, their claim is not hit by limitation. The adjudicating authority held that the refund claim is eligible for sanction on merits and sanctioned the amount of Rs. 3,82,431/-. Accordingly, in case the department felt that such sanction of refund was erroneous, show cause notice should have been issued under section 11A for recovery of duty allegedly erroneously refunded . This certainly was not done. Of course, there had been some doubt regarding whether erroneous refund granted could be granted by recourse to review under section 35E of the Central Excise Act or whether appellants wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch should be issued within 6 months from the date of actual refund. Since time-limit for filling appeal u/s 35E(2) is longer than the time-limit prescribed u/s 11A, the SCN, the SCN should precede the proceedings u/s 35E(2). This view has been supported by the opinion of the Law Ministry. The Law Ministry vide F.No. 387/78/98-JC has opined thus, In view of the judgment of the Apex Court in CCE v. Re-Rolling Mills - 1997 (94) E.L.T. 8 dismissing the appeal preferred by the Department against the CEGAT order, the order passed by the Tribunal on 27-1-98 in the present case of M/s. Fag Precision Bearing Ltd. reflects the correct legal position. We, therefore, agree with the view of the referring Department that the demand for recovery of erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Officer may, within one year 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 : Provided that where any duty of Excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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