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TMI Blog2019 (9) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (AR) ORDER The present appeal is directed against the impugned order dated 04.02.2019 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of two wheeler motor vehicles and clears goods to the depots/branches and dealers. Certain abatements viz. Freight, Free Service Charges, Discounts, Additional Discount for rural sales is not known at the time of removal of goods from the factory. Provisional assessment of the goods cleared from factory gate was resorted. Subsequent to the sale from the factory gate they have issued credit notes to the dealers to pass on the various abatements based on final price of the goods cleared from depot. The provisional assessment for the period 2005-06 was finalized vide OIO dated 30.07.2007 and it was held that the assessee was eligible for refund of the excess duty paid on such abatements to the tune of ₹ 4,81,647/- in the refund order dated 29.10.2007. Since the department had filed an appeal before Apex Court against the decision of Madras High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover refund rightfully sanctioned to the appellant without challenging the order sanctioning refund. Finally, he argued that in absence of any challenge to the said final order sanctioning refund, the present proceedings for recovery of refund stands infructuous and cannot be sustained on this ground alone. He further submitted that this issue is no more res integra and has been settled in favour of the assessee by various decisions of the Tribunal. He relied upon the following decisions: Bridgestone India Pvt. Ltd. Vs. CGST Central Excise, 2019-TIOL-1856-CESTAT DEL-DB. TVS Motor Ltd. Vs. CCE ST, Mysore, 2017 (5) GSTL 85 (Tri-Bang). Commissioner of Customs Vs. Millat Fibres, 2011 (271) ELT 512 (Guj.) 4.1. He further submitted that in identical facts, this Tribunal has decided the test of unjust enrichment and has held that test of unjust enrichment does not apply to cases of provisional assessment. For this, he relied upon the decision of the Division Bench in the case of J.K. Tyre Industries Ltd., Final Order No. 20596-20603/2018 dated 11.04.2018 wherein identical facts were involved. 5. On the other hand, Learned AR d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under Sections 11A and 11B of the Act are appealable. The determination of an application made under Section 11B of the Act would result in the entitlement of an applicant for refund of any excise duty paid. If a very determination does not result in declaration of entitlement of refund any money paid in obedience to an order by an authority in the process of adjudication of such claims cannot be termed as granting of erroneous refund. Such payment would fall in the category of implementation of an order, subject to finality of such order. In other words, such refund would be outside the scope of the erroneous refunds contemplated under Section 11A of the Act. In a way Section 11A and 11B of the Act operate in two different streams. The Madras High Court in Everyday Industries India Ltd. followed the view taken by Andhra Pradesh High Court and also observed that once an application for refund is allowed under Section 11B, the amount refunded will not fall under the category of erroneous refund‟ so as to enable the order of refund to be revoked under Section11A of the Act. The relevant paragraphs are reproduced below : 28 . But, a careful lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly paid, is upon the Central Excise Officer. The expression used in Clause (a) in sub-section (1) of Section 11A is Central Excise Officer‟. 48. Insofar as the decision of the Andhra Pradesh High Court is concerned, one observation made in Paragraph 16 of the said decision is of prime importance. In Paragraph 16, the Andhra Pradesh High Court has made it clear, after analysing Sections 11A and 11B that there is an adjudication process involved in the processing of applications made under Sections 11A and 11B. The Andhra Pradesh High Court held that orders passed under Sections 11A and 11B are appealable. Therefore, the decision of the Andhra Pradesh High Court, especially the observations in Paragraph 16, should be made use of by the assessee to contend that since there was no appeal against the order under Section 11B, the Department cannot take recourse to Section 11A. 51 . We are of the considered view that the paragraph extracted above is a complete answer to the question of law now raised. Unfortunately, in none of the decisions relied upon by the learned standing counsel, the Courts were confronted with an order of adjudication passed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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