Erroneous proforma credit recoverable as short levy, with excise limitation applying and no exclusive Section 35E route.

Erroneous proforma credit or refund taken under Rule 56A may be recovered as short levy under the excise recovery provision, subject to the applicable limitation period, and Rule 56A(5) does not exclude that remedy. A contention that Section 35E(2) supplied the only proper route was not accepted where the record showed a formal refund order and the issue had not been raised and decided before the Tribunal. The reference was rejected because no referable question of law arose.

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Issues: Whether erroneous proforma credit or refund could be recovered under Section 11A despite the time limit in Rule 56A(5), and whether the suggested challenge based on Section 35E(2) altered the result.

Analysis: The reference turned on recovery of credit wrongly taken under Rule 56A. The Tribunal relied on settled authority holding that such erroneous credit is recoverable as a case of short levy, subject to the limitation applicable under the excise recovery provision, and not by treating Rule 56A(5) as excluding that remedy. The earlier High Court rulings and the Tribunal's own precedent were followed. The argument that Section 35E(2) supplied the only proper route was not accepted, since the record showed a formal order granting refund and the supposed Section 35E-based question had not been raised and dealt with before the Tribunal.

Conclusion: The reference application was rejected, as no question of law arose and the departmental recovery action was upheld in principle.

Ratio Decidendi: Erroneous credit or refund under Rule 56A can be proceeded against as a short levy under the excise recovery provision, subject to the applicable limitation period, and a new jurisdictional contention not raised before the Tribunal does not arise for reference.

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