1993 (10) TMI 159 - AT - Central Excise

Tax Appeal: Recovery of refund allowed without separate notice if Section 35E(4) application filed within 6 months.

The Tribunal allowed the appeal by the Department, holding that recovery of a refund granted erroneously could proceed without a separate notice under ... Recovery of refund erroneously granted Issues:Appeal against order of Collector of Central Excise (Appeals) regarding recovery of refund; Interpretation of Sections 35E(4) and 11A of Central Excises & Salt Act, 1944.Analysis:The appeal was filed by the Department challenging the order of the Collector of Central Excise (Appeals) regarding the recovery of a refund granted erroneously for the period March 1986 to August 1986. The lower appellate authority rejected the Revenue's plea for recovery, stating that no show cause notice was issued under Section 11A within 6 months, hence recovery could not be effected through review proceedings under Section 35E(4).The Department argued that a previous Tribunal order in Apt Lab Pvt. Ltd. v. C.C.E. supported their position, stating that as long as an application under Section 35E(4) is filed within 6 months, duty is recoverable even without a separate notice under Section 11A.The respondent's consultant contended that previous Tribunal decisions, such as C.C.E. v. Universal Radiators Ltd. and Sree Digvijay Cement Co. Ltd. established that the limitation under Section 11A must apply for any recovery, necessitating a notice under Section 11A despite filing an application under Section 35E(4) within 6 months.The Tribunal observed that Section 35E(4) allows rectification of errors or miscarriages of justice in lower authority orders. It emphasized that the application for recovery and setting aside the lower authority's order was made within 6 months, satisfying the limitation requirement under Section 11A. The Tribunal held that a notice under Section 11A was not necessary, as Section 35E(4) provides a substantive remedy for such situations. The lower appellate authority was directed to reconsider the matter on merits, and the appeal was allowed by remand.