TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 1133
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.... amended by Notification Number 193/82 dated 11.06.1982 for excess production of Sugar produced during the period 01.5.1982 to 30.9.1982. The Assistant Collector provisionally paid an amount of Rs. 9,50,000/- vide order dated 30/1/19S84 and sanctioned Rs. Rs. 6,38,254.30 covering the period from 11/6/1982 to 30/9/1982. The assessee contested the order before the Collector (Appeals) for rebate on its production of sugar production prior to the period 11/6/1982/ that is from 01/5/1982 to 10/6/1982. The appeal was rejected by Collector appeals and on further appeal of the assessee before Tribunal the appeal is allowed vide the Final Order dated 20/7/1998 and held that the amending Notification Number 193/82 had retrospective effect and not the....
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....h Court was pleased to set aside the order dated 28/3/2007 of this Tribunal and remanded the matter to the Tribunal for a fresh consideration on merits: 4. Pursuant to remand by the Honourable High Court, the respondent assessee have filed Miscellaneous Application Number 51919/2015 raising a question of law 'that refund once granted cannot be demanded saved except by issuing a show cause notice under section 11 A of the Act, The said issue being a question of law and going to the root of the matter is allowed to be raised. 5. The Id. Counsel for the Revenue states that under the facts and circumstances the revenue had no occasion to issue show cause notice and as such no adverse inference can be drawn for the same. The 'do AR fur....
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.... para-8 and 9 of its order as follows: Para -8. Initially there were some doubts as to whether the amount of refund sanctioned by the Dy. Commissioner dated 19-12-2000 was actually paid which was subsequently confirmed as actually disbursed to the appellants. This was in or around December 2002. Therefore, the issue is- whether for recovery of erroneous refund, show cause notice under Section 11 A is required to be issued or whether challenge to the Order of sanction of the refund under Section 35E(2) is sufficient. We find that this issue stands settled by series of decisions starting with the decision of Apex Court in the case of CCS Bhubaneshwar v. Re-rolling Mills 1997 (94) E.L.T. (S.C.) which has been followed in Rosemount (India) Ltd....
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....Ltd. V. Collector of Central Excise, Bombay - 2002 (142) E.L.T. 522 (S.C.) holding that recovery of excise duty can be made pursuant to an appeal filed after invoking the provisions of Section 35E of the Central Excise Act, 1944 if the time limit provided in Section 11A has expired and Sections 35E and 11 A operate in different fields and for different purposes, to support the contention of the Revenue that show cause notice under Section 11 A is not required for erroneous refund and, resort to provision of Section 35E (2) is sufficient in such situation. However, we note that the Apex Court has been and distinguished the Tribunal decision in the case of M/s, Pricol Ltd. v. CCE, Coimbatore = 2007 (213) (41) (Tribunal) 2007-TIOL-919-CESTAT-M....
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....acts and circumstances the limitation prescribed under Section 35E of Central Excise Act, 1944 should not be in accordance with Section 11A'. The Apex Court had observed in the decision in appeal by the assessee against this order that the Sections 11 A and 35(E) operated in different fields and were invoked for different purpose. Their Lordships upheld the decision of the Tribunal. Therefore, the Asian Paints Ltd case is distinguishable from the cases cited in para 5 above." Para-9. In the light of Apex Court decision in the case of Re-rolling mills which has been followed by various Benches of the Tribunal and the ratio laid down in the Mumbai High court decision in the case of Bajaj Auto Ltd. covers the issue in favour of the assess....