9911796707
TMI Blog2024 (12) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... e had submitted forged documents with the customs authority with a view to get the refund fraudulently by not declaring the factual position and suppressing the material facts i.e. clearance of different timber which did not pertain to the Bill of Entry for which they claimed refunds on the basis of preparation of forged invoices etc. Such facts came to the notice of the department only after initiation of investigation against the assessee by adopting such modus operandi, the assessee received the refund which otherwise would not have been sanctioned and thereby contravened the provisions of Section 27 of the Customs Act, 1962 read with provisions of Notification No. 102/2007-Cus dated 14.09.2007. The extended period of recovery of refunds so sanctioned erroneously to the assessee was invoked in all the cases and the adjudicating authority passed the orders to recover the refund sanctioned earlier by denying the benefits under N/N. 102/2007-CUS dated 14.9.2007 under the provision of Section 28 of the Customs Act, 1962 along with interest and penalty. Considering the facts of the case and on perusal of the impugned order passed by the Tribunal, it is opined that these appeals are b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential relief ? 3. The respondent -assessee filed the refund claims of additional duty of customs which were sanctioned vide various Orders-In-Original. Thereafter, the revenue challenged such Orders-In-Original before the Commissioner (Appeals) who vide Order in Appeal No. 38 of 235/2013/CUS/COMMR(A) dated 14.3.2023 dismissed the revenue s appeal. 4. Being aggrieved by the Order-In-Appeal dated 14th March, 2013, the revenue further challenged the same before the CESTAT which by order dated 30th October, 2013 upheld the sanction of the refund and dismissed the revenue s appeal. 5. It appears that based on the information gathered that the assessee had claim refund of 4% SAD that had been paid at the time of import of timber incorrectly by submitting sale invoice of timber imported under some other Bill of Entry, a search was carried out at the business premises of the assessee by the DGCEI. On the basis of such investigation report, show cause notices were issued by the revenue and the adjudicating authorities took the view that the assessee had submitted forged documents with the customs authority with a view to get the refund fraudulently by not declaring the factual posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whether or not the refund has been erroneously granted would have to be decided in the manner provided in law. Since the sanction of refund has been held legal and correct as per the tribunal's order, the said refund cannot be treated as erroneous therefore, no show cause notice should have been issued consequently, no order for recovery could have been passed to give color of erroneous to any refund. The revenue has to challenge the refund order and in the present case the same was indeed challenged but not succeeded to hold the refund as erroneous in the light of the tribunal's decision. The revenue has not further Apex Court in its order dated 24th March, 2023 passed the following judgment:- 7. The short question which is posed for consideration before this Court is whether Notice under Section 11A of the Central Excise Act Is necessary for the recovery of the amount when the refund granted is reviewed under Section 35E of the Act and whether a separate notice under Section 11A of the Act to be issued within the time limit prescribed under Section 11A and before the proceedings under Section 35E of the Act are initiated and/or the notice under Section 11A of the Act sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the larger Bench of the Tribunal were under challenge. The Special Bench of the Tribunal took the view that Section 35E and Section 11A operate in different fields and are Invoked for different purposes and different time limits are therefore set out therein. This Court in the case of Asian Paints (India) Ltd. (supra) specifically negated and/or did not accept the submission on behalf of the assessee that the recovery of excise duty cannot be made pursuant to an appeal filed invoking the provisions of Section 35E if the time ilmit under Section 11A has expired. 7.5 The law laid down by this Court in the case of Asian Paints (India) Ltd. (supra) as such was binding on the High Court and despite the same was pointed out and pressed into service by the Revenue before the High Court, the High Court has without giving any reasons how the same is misplaced has ignored to follow the decision of this Court in the case of Asian Paints (India) Ltd. (supra) and rather has followed its earlier decision in the case of Bajaj Auto Ltd (supra) which admittedly was prior to the decision of this Court in the case of Asian Paints (India) Ltd. (supra). 8. As observed hereinabove, once the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt referred to the case of Commissioner of Customs Central Excise v. Panyam Cements Mineral Industries Ltd. 2016 (331) E.L.T. 206 (A.P.), to observe that when no appeal was filed against order under Section 11B, the department cannot take recourse to Section 11A. The Hon'ble Court held as follows: once an application for refund is allowed under Section 118, the expression erroneous refund' appearing in sub-section (1) of Section 11A cannot be applied. If an order of refund is passed after adjudication, the amount refunded will not fall under the category of erroneous refund so as to enable the order of refund to be revoked under Section 11A (1). One Authority cannot be allowed to say in a collateral proceeding that what was done by another Authority was an erroneous thing. Therefore, the question of law has to be answered in favour of appellant/assessee and the appeal deserves to be allowed. The proposition laid in the case of M/s. Eveready Industries India (P) Ltd. is squarely applicable to the case in hand, the fact being identical. In view thereof, I hold that the impugned orders are not sustainable. 7. Learned advocate Mr. C.B. Gupta for the Appellant-Revenue submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
