TaxTMI 
TaxTMI 
2015 (3) TMI 909
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.... 16-02-1999 had claimed and received rebate of duty of Rs. 81, 68,999/- for the goods exported by them during the period January 1999 to March 2000. The admissible rebate of duty with regard to processed textile fabrics was based on a formula mentioned in the notification according to which monthly average rate of rebate was inversely proportional to the actual quantum of processed woven fabrics produced during the month i.e. if the quantity of fabrics processed is more, the rate of rebate will be less and if the quantity of fabric processed is less, then rate of rebate will be more. Subsequently upon investigation by the Central Excise preventive group it surfaced that the processor who undertakes processing of fabrics for several customers had suppressed the actual production of the processed fabrics in the statutory records and have shown only lesser quantity. Had the processor furnished the actual production figures to the department, the eligible amount of rebate for the applicants would have been lesser by Rs. 30,73,604/-. Hence, the applicants was put on notice by the department proposing for the recovery of excess rebate sanctioned. Upon confirmation of the demand for recov....
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....e order of the Hon'ble Tribunal in Voltas Limited Vs. Commissioner of Customs & Central Excise, Hyderabad reported at 2006 (202) ELT 355 (Tri.- Bang.) wherein it was held that a show cause notice issued for recovery of erroneous refund would not sustainable when the order sanctioned refund was not challenged by the revenue. 4.2 The Commissioner (Appeals) ought to have appreciated that it was not open to the Additional Commissioner to go into the necessity or otherwise of providing the relied upon documents to the applicants in the light of the binding order of the Commissioner (Appeals). As the department had not challenged the order of the Commissioner (Appeals), it amounted to an acceptance of the same, and the Additional Commissioner was bound to supply the documents to the applicants and to provide them reasonable opportunity of giving written representations and oral hearing prior to passing his order. The Commissioner (Appeals) ought to have appreciated that the actions of the Additional Commissioner showed scant respect for the directions of the higher ups and complete and utter disregard for the settled principles of law and therefore, the Commissioner (Appeals....
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....es. The rebate was granted to the applicants after thorough scrutiny of the records. The proper officer granted the rebate in terms of Rule 12 of the said Rules read with Notification No. 31/98-CE (NT) after due application of mind. The rebate sanctioned cannot be termed as erroneous inasmuch as the order passed as above, granting the rebate remains unchallenged. As such the demand raised by issuing a show cause notice under section 11A of the Act is not sustainable and bad in law. In the circumstances, the Commissioner (Appeals) ought to have set aside the Order-in-Original, dated 12^th September 2008. 4.6 Without prejudice to the aforesaid and in any view of the matter the Commissioner (Appeals) failed to appreciate that the extended period of limitation was inapplicable for the purpose of recovery of rebate in the present case. By the finding of the Additional Commissioner as rendered in paragraph. 11 and 12 of the Order-in-Original, the applicants had not indulged in the act of mis-declaration and/or suppression of facts at all. A cumulative reading of the findings in paragraphs 11 and 12 of the Order-in-Original showed that the applicants had relied upon the dec....
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.... 7. Government observes that the applicants in accordance with Rule 12 of the erstwhile Central Excise Rules, 1944 read with Notification No. 31/98 CE (NT) dt. 16-02-1999 had claimed and received rebate of duty of Rs. 81, 68,999/- for the goods exported by them during the period January 1999 to March 2000. The admissible rebate of duty with regard to processed textile fabrics was based on a formula mentioned in the notification according to which monthly average rate of rebate was inversely proportional to the actual quantum of processed woven fabrics produced during the month i.e. if the quantity of fabrics processed is more, the rate of rebate will be less and if the quantity of fabric processed is less, then rate of rebate will be more. Subsequently, upon investigation by Central Excise preventive group it surfaced that the processor who undertook processing of fabrics for several customers had suppressed the actual production figures of the processed fabrics in the statutory records and have shown only lesser quantity. Had the processor furnished the actual production figures to the department, the eligible amount of rebate for the applicants would have been lesser by Rs. 30,73....
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....urt of Gujarat in W.P. No. 9585/11 in the case of M/s Choice Laboratory vide order dated 15.9.11, Hon'ble High Court of Delhi vide order dated 4.8.11 in W.P. No.5529/11 in the case of M/s High Polymers Ltd. and Hon'ble High Court of Bombay in the case of M/s EPCOS India Pvt. Ltd. in W.P. No. 10102/11 vide order dated 25.4.2012, have held that period consumed for perusing appeal bonafidely before wrong forum is to be excluded in terms of section 14 of Limitation Act 1963 for the purpose of reckoning time limit of filing revision application under Section 35 EE of Central Excise Act, 1944. The ratio of above said judgment is squarely applicable to this case. Government therefore keeping in view the above cited judgments, considers that revision application is filed after a delay of 13 days which is within condonable limit. Government, in exercise of power under section 129 DD of Customs Act, condones the said delay and takes up revision application for decision on merit. 9. Government observes that applicant has mainly contended that impugned Order-in-Original has been passed is gross violation of principle of natural justice in as much as the original authority did not fo....
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.... not preferred any appeal against it When the order had remained uncontested by he processor which amounts to acceptance of the suppression of production and clandestine removal of processed fabrics, the quantity of production/clearance ascertained by the department on verifying the private records of the processor becomes final and this has made the lower authority to come to a conclusion that there is no necessity to provide such relied upon documents to M/s Adani Exports Ltd. 7. I find some force in the decision of the lower authority in not providing the applicants an opportunity to peruse the documents. In this scheme of rebate the quantum of processed fabrics produced is the vial factors which decides the amount of rebate. According to the formula given under Notification No. 31/98-CE (NT) dated 24-08-1998 as amended which extend the rebate benefits to the exporters, the average rate of rebate for a month is inversely proportional to the quantum of processed fabrics produced during the month i, e. if the quantity of fabrics processed is more, rate of rebate will be less and if the quantity of fabrics processed is less then the rate of rebate will be more The applican....
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....on any working day. But the applicants wanted the relied upon documents to be sent to Ahmadabad for their perusal. The request was not acceded by the lower authority holding that there was no provision to send the relied upon documents to Ahmadabad. It was also recorded in the order that the applicants had neither replied to the notice nor availed the opportunities given to them to appear for personal hearing before the adjudicating authority. Hence the lower authority had passed an ex-parte order. It appears that the applicants in the first instance have erred in not availing the opportunities given to them by the adjudicating authority. Further their calling for the case records for perusal by them at their place in Ahmadabad is also not agreeable to anyone. This shows their non-cooperative tendency with he authorities In the second order, which is under appeal now, the lower authority satisfactorily explains the nature of the case as it stands now, in the back drop of the case registered against the processor decided by the Commissioner of Central Excise, Salem which remains uncontested by the processor, and has held that there is no need now for providing the relied upon docume....
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.... attended personal hearing before adjudicating authority as pointed, out by Commissioner (Appeals). So, there is no force in the contention that principles of natural justice were violated. 10. Applicant has contended that department has not reviewed the, initial Order-in-Original under which rebate claims were sanctioned and hence it was not legally permissible for the department to initiate proceedings under section 11A of Central Excise Act, 1944 without reviewing the Order-in-Original under section 35 E of Central Excise Act, 1944. In this regard, it is relevant to rely on the judgment of Hon'ble High Court of Bombay in the case of M/s. Indian Dye Stuff Industries Ltd. Vs. UOI 2003 (161) ELT 12 (Bom.). In the said judgment it is held that section 11A if Central Excise Act 1944 being an independent substantive provision, the appellate proceedings are not required to be initiated before issuing Show Cause Notice under section 11A if there are grounds existing such as short levy, short recovery or erroneous refund etc. Section 11A is an independent. substantive provision and it is a complete code in itself for realisation of excise duty erroneously refunded. There are no ....
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.... (Tri. Mumbai)] it has been held: "11. We hold that the issue of Show Cause Notice under section 28 of the Customs Act, 1962 for recovery of the erroneously granted refund is sufficient to meet the requirement of law. Following the ratio of the Hon'ble Supreme Court judgments in the case of Re Roiling Mills and Jain Shudh Vanaspati cited supra and the Tribunals order in the case of Roofit Industries Ltd., we hold that the proceedings initiated under section 28 of the Customs Act, 1962, are not vitiated on the ground of non: filing of appeals by the Revenue against the orders No. 72 dated 01-03-1994 and 99 dated 11-03-1994 passed by the Assistant Commissioner. Therefore, the demand of erroneous refunds under section 28 of the Customs Act, 1962 is sustainable. " 10.4 In Roofit Industries Ltd. Vs. Commissioner of Central Excise, Chennai2005 (191) ELT. 635 (tri. Chennai) it has been held as follows: " 4............We follow this precedent and apply the ratio of the Supreme Courts decision in Jain Shudh Vanaspati (Supra) to the facts of the instant case and, accordingly, reject the appellants' contention that, a Show Cause Notice demanding erroneously refu....