1987 (10) TMI 197 - AT - Customs

Tribunal dismisses Reference Application; emphasizes adherence to statutory provisions and legal precedents

FRIZAIR CORPORATION Versus COLLECTOR OF CENTRAL EXCISE, HYDERABAD

The Tribunal rejected the Reference Application, stating that no points of law arose from its order. It found that the issues raised were not argued ... A question of law if well-settled, question not fit for reference Issues:1. Applicability of specific statutory provisions in reviewing original orders.2. Claim for recovery of credit under specific rules.3. Applicability of Section 11A of the Excise Act in cases of recovery of credit.Analysis:1. The first issue revolves around the applicability of specific statutory provisions in reviewing original orders. The Counsel argued that Rule 56A(5) providing a six-month time limit for recovery should prevail over the general provision of limitation under Section 11A. The Counsel contended that the order of refund, being appealable, cannot be reviewed by the same authority. The Counsel emphasized that the correct procedure should involve the Collector invoking powers under Section 35E for revision within the specified time frame. The Tribunal erred in applying the ratio of a previous case, as argued by the Counsel.2. The second issue concerns the claim for recovery of credit wrongly taken under specific rules. The Departmental Representative argued that the recovery should be made under Section 11A of the Act, as the wrong availment of credit constitutes a case of short levy. The Departmental Representative highlighted that the question raised in the Reference Application regarding the applicability of Section 11A was not argued before the Tribunal and thus does not arise from the Tribunal's order.3. The third issue addresses the applicability of Section 11A of the Excise Act in cases of recovery of credit. The Tribunal referred to decisions by the Bombay High Court, Andhra Pradesh High Court, and its own Special Bench, which established that recovery of erroneously taken credit should be subject to the limitations prescribed in specific rules. The Tribunal upheld the applicability of the bar of limitation in such cases. Additionally, the Tribunal found that the Delhi High Court decision in the Bawa Potteries case was relevant, as it pertained to a prior quasi-judicial determination and the power of review by the same authority.In conclusion, the Tribunal rejected the Reference Application, stating that no points of law arose from its order. The Tribunal found that the issues raised were not argued before it and that the law was well settled based on previous judgments by High Courts and the Tribunal itself. The Tribunal emphasized the importance of following specific statutory provisions and established legal precedents in matters concerning the recovery of credit and the review of orders.