2018 (10) TMI 469

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....llant vide page No. 128 of the Appeal Paper Book have filed chronology of dates and events showing that the period of dispute is from July 2003 to December 2004. Ld. Advocate appearing on behalf of the appellant submits that the present dispute is the partial rejection of refund claim to an extent of Rs. 4,55,614/- out of total refund claim of Rs. 13,95,029/- vide impugned Order( in-Appeal No. TTD-EXCUS-ooo-APP-123-17-18, dated 08.02.2018; appellant had filed refund claim dated 9.4.2015 for a sum of Rs. 13,95,029/- before the Dy. Commissioner of Customs & CE, Tirupati II Division, Tirupati under section 11B of Central Excise Act, 1944, pursuant to Final Order No. 20070/2014, dated 22.01.2014 of the Tribunal wherein it was held that show cau....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....upport of his submissions: a) Gujarat State Fertilisers & Chemicals Ltd. vs. CCE [2017(352)ELT 308 (Guj.)] b) Tamilnadu Newsprint & Papers Ltd. vs. CCE, Trichy [2006(205) ELT 277 (Tri.-Chennai)] Ld. DR further argued that the appellants had never disputed the disallowance and payment of CENVAT credit of Rs. 3,15,306/- which they had already reversed. Further, the Commissioner (Appeals) vide Order-in-Appeal No. 05/2009 (T) CE, dated 20.03.2009 had set aside the penalty of Rs. 3,15,306/- and had upheld the penalty of Rs. 1.00 lakh and interest. It is his submission that the appellants are now raising new plea before the Tribunal. In support of his submissions, he relied upon various decisions. 3. Heard b....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....refunded". This certainly was not done. Of course, there had been some doubt regarding whether erroneous refund granted could be granted by recourse to review under Section 35E of the Central Excise Act or whether appellants were required to be issued show cause notice under Section 11A within the statutory time limit. In the Circular dated 22-9-1998, relied upon by the Ld. Counsel, the C.B.E. & C. has clarified that timely demand should be raised under Section 11A for erroneous refund. The relevant portion of the Circular is hereby reproduced for better understanding :- "7. In the Circular No. 423/56/98-CX, dated 22-9-1998, the C.B.E. & C. had issued the following clarification :- "Certain doubts have been raised regardin....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed by the Department against the CEGAT order, the order passed by the Tribunal on 27-1-1998 in the present case of M/s. Fag Precision Bearing Ltd. reflects the correct legal position. We, therefore, agree with the view of the referring Department that the demand for recovery of erroneous refund has to be made u/s 11A of the Central Excise Act, 1944 within the prescribed limitation period". In view of above it is clarified that timely demands should invariably be raised (within six months normal period) under Section 11A of the Act." 5.1 The period of dispute in the impugned appeal is 2003-04 and as such, the department officers were fully aware of the above Board circular which is also binding on them. Nonetheless, no show....