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TMI Blog2021 (1) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... c. the Central Excise Officer would within 2 years from the relevant date serve a notice on the person chargeable to the duty calling upon him to show cause why the amount specified in the notice along with interest not be recovered. Sub-section 1 of Section 11A thus authorizes the Central Excise Officer to recover any duty of excise, besides others, which has been erroneously refunded. It is in this context that the term erroneously refunded assumes significance. When the Excise Officer passed the order of refund, he was applying the law laid down by the Supreme Court which by virtue of Article 142 of the Constitution is the law of the land. He had no other choice but to follow the decision of the Supreme Court in case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [ 2017 (11) TMI 655 - SUPREME COURT] . Any other action on his part would be wholly illegal. His order of refund thus was in consonance with the law declared by the Supreme Court at the time when he was passing the order. In our view any subsequent change in the legal position, would not permit him to invoke the powers under Section 11A of the Central Excise Act. As is well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (s) : Dr. A.K. Saraf, Sr. Advocate, Mr. Kousik Roy, Advocate. For the Respondent(s) : Mr. Paramartha Datta, Advocate. JUDGMENT ORDER (ORAL) (AKIL KURESHI, CJ) Petitioner has challenged a show-cause notice dated 03.07.2020 issued by the Assistant Commissioner of Central Goods Service Tax, Agartala, respondent No.3 herein calling upon the petitioner to show-cause why an amount of ₹ 53,06,055/- which according to the said respondents was erroneously refunded to the petitioner should not be recovered under Section 11A of the Central Excise Act, 1944 along with interest. [2] Briefly stated the facts are as under : Petitioner is a registered partnership firm and is engaged in the manufacture of excisable goods such as M.S. Ingots, HSD Bars, Rods etc. falling under Central Excise Tariff Sub Heading No.72142090 72061010. In order to encourage industrial growth in the North Eastern region and for the industrial development of the region the Government of India had formulated industrial policy. After due deliberations the Government of India issued a notification dated 24.12.1997 under which certain areas such as growth centres, infrastructure develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd held that the petitioner was entitled to receive the refund of the education cess and higher education cess collected on the goods cleared from its manufacturing units. Relevant portion of this order reads as under : From the above discussion I am in the opinion that the Education Cess and the Secondary Higher Education Cess bears the same characteristics of their parent levy i.e. the Excise duty and hence the refund of Education Cess and the Secondary Higher Education Cess along with the Excise Duty will also bear the same characteristics as the Excise Duty. In the present scenario as the Refund of Excise Duty is not barred by unjust enrichment hence the refund of Education Cess and the Secondary Higher Education Cess along with the Excise Duty will also not barred by unjust enrichment and the refundable amount will also be calculated in line of the calculation of the Excise Duty refund. I sanction an amount of ₹ 35,97,315/- (Rupees thirty five lakh ninety seven thousand three hundred fifteen) as Education Cess and ₹ 17,08,740/- (Rupees seventeen lakh eight thousand seven hundred forty) as Secondary Higher Education Cess of totaling ₹ 53,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( supra ) the Assistant Commissioner issued impugned show cause notice. According to him, the refund of education cess and higher education cess was erroneously granted and therefore in terms of Section 11A of the Central Excise Act the same was liable to be recovered. He, therefore, called upon the petitioner to show cause why such amount should not be recovered with interest. [7] This show cause notice the petitioner has challenged in the petition raising several legal contentions. As is well settled, ordinarily High Court would not encourage litigation at the very threshold when a competent authority has merely issued a show cause notice and not yet taken a final decision. The noticeee would ordinarily be asked to respond to the show cause notice and allow the competent authority to pass order in accordance with law. However, in the present case the petitioner has questioned the very jurisdiction of the Assistant Commissioner to raise a demand for recovery of the refund already released. No factual aspects are involved. We have, therefore, heard learned counsel for the parties at considerable length for final disposal of the petition. [8] Appearing for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncuriam. Short question is in view of such factual scenario can the Assistant Commissioner seek recovery of refund already granted. [11] In this context, we may first refer to Section 11A of the Central Excise Act. It pertains to recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Relevant portion of this Section reads as under : (1) When any duty of excise has not been levied or paid or has been short- levied or short- paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was in consonance with the law declared by the Supreme Court at the time when he was passing the order. In our view any subsequent change in the legal position, would not permit him to invoke the powers under Section 11A of the Central Excise Act. As is well settled, all legal proceedings on the date when they are being decided by any Court, would be governed by the law laid down by the Supreme Court which prevails on such date. As is often happens, a decision of the Supreme Court is reviewed, reconsidered or overruled by larger Bench. Such subsequent decision would undoubtedly clarify the position in law and such declaration would undisputedly apply to all pending proceedings, the proceedings which are closed in the meantime , cannot be reopened on the basis of subsequent declaration of law by the Supreme Court. Any other view would lead to total anarchy. Based on the judgment of the Supreme Court several proceedings would have been decided. If years later such view is reversed, the parties who had not carried the proceedings in higher forum and thus not kept the proceedings alive, cannot trigger a fresh look at the decision already rendered by the competent court on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly challenge the correctness of the order by filing a refund claim on the ground that the said order was erroneous. In case of Priya Blue Industries Ltd ( supra ) it was observed that an assessment order unless reviewed or modified in appeal stands and in absence of such modification of the order of assessment a claim for refund would not be maintainable. [17] These are the decisions where under a reverse situation an assessee would seek refund of a duty paid without questioning, challenging or having the order of assessment reversed or modified in appeal. In our opinion the same analogy would apply in the present case also; though to the detriment of the department. We may also refer to the decision of the Supreme Court in case of Mafatlal Industries Ltd. and others versus Union of India and others reported in (1997) 5 SCC 536 where the nine-Judge Bench of the Supreme Court settled several issues of refund of excise and customs duties. One of the principles settled by the majority judgment was that each party must carry his own assessment in appeal and cannot rely on the order of the higher forum in case of some other assessee to claim refund of the duty collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat apart, the Commissioner by powers vested in him by virtue of section 40 on his own motion can call for the record of any case pending or disposed of by any Assessing Authority or appellate authority other than the Tribunal. The decision of the appellate authority that was set aside by the revisional authority as mentioned above was based upon the decision of the Tribunal, even though, therefore, the revisional authority was not reopening the case decided by the Tribunal, it virtually amounts to upsetting an order that is based upon the decision of the Tribunal. [19] Learned counsel for the petitioner has also drawn our attention to the decision of the Supreme Court in case of Malabar Industrial Co. Ltd. versus Commissioner of Income Tax, Kerala State reported in (2000) 2 SCC 718 in which in the context of the term used erroneous in Section 263 of the Income Tax Act, 1961 it was observed as under : There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer; it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an inco ..... 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