TaxTMI 
TaxTMI 
2015 (10) TMI 572
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....entral Excise Rules, 1944 and Rule 5 of CENVAT Credit Rules being unutilized credit accumulated on account of exports. After sanctioning the refund, the adjudicating authority issued three show-cause notices dated 21.11.2002, 3.1.2003 and 3.1.2003 demanding recovery of erroneous refund under section 11A of Central Excise Act, 1944 and confirmed the demand of Rs. 74,99,199/- and also imposed penalty of Rs. 1,00,000/- under section 11AC of Central Excise Act, 1944 by common Order-in-Original No. 109 to 111/2003 dated 10.9.2003. Commissioner (Appeals) upheld the adjudication order. Hence, appellants have come in appeal before this Tribunal. 3. Learned counsel submits that the Department has sanctioned refund under Rule 57AC(7) of Central Exci....
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....on 11A and the show-cause notices were not issued under Notification. He further submits that if time limit specified under notification is taken no recovery can be made beyond the period of five years and extended period cannot be invoked in any refund. Therefore, section 11A provision overrides the notification. 5. After hearing both sides and careful consideration of the records, we find that the limited issue in this case is whether notices issued by adjudicating authority for demanding erroneous refund is hit by limitation specified under notification No. 35/2000 or whether general limitation for extended period is covered under section 11A of Central Excise Act,1944. 6. On perusal of the records, we find that the adjudicating author....
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...., the period mentioned under section 11A is not applicable. Para 13 of the Hon'ble Supreme Courts order reads as under:- 13. Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. Section 11A is not an omnibus provision which provides any period of limitation for all or....
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.... the credit said to have been earned by him is pointed out, and the manufacturer is only directed to reverse the credit so wrongly and undeservedly made by readjustment and if need be, to recover the amount equivalent to such credit wrongly availed of and disallowed by the proper officer. The recovery of credit availed of and utilized in utter breach of the faith and mutual trust and confidence which is the raison detre for the proper and successful working of the Modvat scheme and that too in gross violation of the mandatory requirements necessarily to be fulfilled before ever claiming or availing of such benefits cannot be said to be the same as the demand for payment to be made under Section 11A of the Act of any excise duty not levied o....