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TMI Blog2024 (9) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... where any such duty of excise has not been levied or short-levied or erroneously refunded for any reason other than the reasons of fraud or collusion, etc., the Central Excise Officer would, within two 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. The learned Tribunal proceeded to observe to the effect that the Excise Officer had no other choice but to follow the decision of the Hon ble Supreme Court in M/s SRD Nutrients. Any other action on his part would have been wholly illegal. His order of refund thus was in consonance with the law declared by the Hon ble Supreme Court at the time when he was passing the order. The learned Tribunal proceeded further to observe that in its view any subsequent change in the legal position would not permit him to invoke the powers of section 11A of the Act of 1944. As is well settled, all legal proceedings on the date when are being decided by any Court, would be governed by the law laid down by the Hon ble Supreme Court which prevails on such date. This statutory appeal is a classic example of an instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of SRD Nutrients (supra) and thereafter the decision of the SRD Nutrients (supra) was over-ruled by the Hon ble Apex Court in the case of Unicorn Industries (supra), it does not mean that at the time of sanctioning of refund claim, the decision of the Hon ble Apex Court in the case of SRD Nutrients was valid. As the decision of Hon ble Apex Court in the case of SRD Nutrients (supra) during the relevant period holding the field, in that circumstances, the refund claims were rightly sanctioned to the appellants as held by the Hon ble High Courts in the abovecited decisions namely Tripura Ispat vs. UOI (supra), therefore, we hold that the show cause notice issued to the appellant are not sustainable. 9. Accordingly, the impugned orders are bad in law. Accordingly, the same are set aside. In the result, the appeals are allowed with consequential relief, if any. 4. The learned Deputy Solicitor General of India representing the appellant submits that the decision of the Hon ble Supreme Court referred to and relied upon by the authority which sanctioned the refund claims of the respondent, being the case of M/s SRD Nutrients Private Limited. vs. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of two years shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within two years from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4). (12) Where the appellate authority or tribunal or court modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10), then the amount of penalties and interest under this section shall stand modified accordingly, taking into account the amount of duty of excise so modified. (13) Where the amount as modified by the appellate authority or tribunal or court is more than the amount determined under sub-section (10) by the Central Excise Officer, the time within which the interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority or tribunal or court in respect of such increased amount. (14) Where an order determining the duty of excise is passed by the Central Excise Officer under this section, the person liable to pay the said duty of excise shall pay the amount so determined along with the interest due on such amount whether or not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion between the cases of duties of excise not having been levied, paid, short-paid or short-levied, erroneously refunded, for reasons of fraud, collusion or any mis-statement or suppression of facts or contravention of any provisions of the Act or Rules made with the intent to evade payment of duty and in cases where none of these elements are present, under sub-section (1) of section 11A of the Act of 1944, where any such duty of excise has not been levied or short-levied or erroneously refunded for any reason other than the reasons of fraud or collusion, etc., the Central Excise Officer would, within two 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 authorises 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. 9. The learned Tribunal took notice of the above position in law while going on to observe that when the Excise Officer passed the order of refund, he was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order dated 04th July, 2023, rendered in the case of Commissioner of CGST and Central Excise (J K) vs. M/s Saraswati Agro Chemicals Pvt. Ltd. (Special Leave Petition (Civil) Diary No(s). 18051/2023). Relevant portion of the judgment and order dated 04th July, 2023, rendered by the Hon ble Supreme Court of India, is quoted hereinbelow: - With regard to the reference order made on 27.09.2021 on a miscellaneous application filed by the Revenue seeking to undo the judgment in M/s SRD Nutrients (P) Limited which was overruled in the subsequent judgment of this Court in M/s Unicorn Industries (supra), the question is whether there was a need at all to refer the matter to a larger Bench. This is for two reasons: firstly, such an application could not have been filed after a review petition in M/s SRD Nutrients (P) Limited had been dismissed by this Court. Thus, in substance, by filing the miscellaneous application the revenue was seeking a second review of the said judgment which is impermissible in law (Order XLVII Rule 9 CPC). Secondly, by ignoring the Explanation to Order XLVII Rule 1 of the CPC and the principle that emerges from the same, what is sought to be contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Unicorn Industries (supra) has observed in Paragraph 74 as under: Applying the aforesaid principle in the cases at hand, since the assessee has been held entitled to the refund of the Educational cess and Secondary Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court rendered in the case of Unicorn Industries. If such an action is permitted, it will open a Pandora box and the lis between the parties which had attained finality will never come to an end. This would be against the public policy which envisages providing quietus to litigation at some stage. In substance, the High Court has stated that the decision in SRD Nutrients (P) Limited (supra) had attained finality and was binding on the parties thereto. Therefore, the subsequent decision of this Court overruling SRD Nutrients (P) Limited (supra) in the case of M/s Unicorn Industries cannot have a bearing on past decisions which had attained finality although they had followed SRD Nutrients (P) Li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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