TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 577
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.... The provisional assessment for the period 2005-06 was finalized vide OIO dated 30.07.2007 and it was held that the assessee was eligible for refund of the excess duty paid on such abatements to the tune of Rs. 4,81,647/- in the refund order dated 29.10.2007. Since the department had filed an appeal before Apex Court against the decision of Madras High Court in the case of Addision & Co., a notice dated 15.09.2008 was issued to the assessee proposing to hold the sanction of refund as irregular and recover the same along with interest. Apex Court allowed the appeal filed by the department and held that the doctrine of unjust enrichment has to be satisfied by the assessee and the discounts has to be passed on to the ultimate buyer as envisaged under Section 11B read with Section 12B of the Central Excise Act, 1944. Based on this ruling the adjudicating authority has held that the sanction of refund vide OIO dated 29.10.2007 was ordered to be recovered along with interest. Aggrieved by the OIO, appellant filed appellant filed appeal before the Commissioner (Appeals) who rejected the same. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned Counse....
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....at test of unjust enrichment does not apply to cases of provisional assessment. For this, he relied upon the decision of the Division Bench in the case of J.K. Tyre Industries Ltd., Final Order No. 20596-20603/2018 dated 11.04.2018 wherein identical facts were involved. 5. On the other hand, Learned AR defended the impugned order and relied upon the decision of this Tribunal in the case of Axwel India Pvt. Ltd. Vs Commissioner of C.Ex., Bangalore [2009 (246) ELT 358 (Tri. Bang.)]. 6. After considering the submissions of both the parties and perusal of the material on record, I find that in the appellant's own case reported in 2017 (5) GSTL 85, this Tribunal has held that any appeal against the sanctioning of refund order, the Revenue cannot recover erroneously sanctioned refund by parallel proceedings by issue of SCN. Further, I find that the Division Bench of the Delhi Tribunal in the case of Bridgestone India Pvt. Ltd. (supra) where identical facts were involved, the Division Bench of the CESTAT, Delhi after considering the various decisions of the Hon'ble High Courts as well as the provisions of the Central Excise Act has held in Para 25, 26 as under: "25. It is, therefore, ....
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....1B, the amount refunded will not fall under the category of "erroneous refund‟ so as to enable the order of refund to be revoked under Section11A of the Act. The relevant paragraphs are reproduced below : "28. But, a careful look at the scheme of Sections 11A, 11B and 35E would show that an application for refund is not to be dealt with merely as a ministerial act or an administrative act. Under Section 11B of the Act, a person, claiming refund of any duty of excise and interest already paid, should make an application in the prescribed form. Such application is to be made within the period of limitation prescribed under sub-section (1) of Section 11B. The application should be accompanied by such documentary or other evidence, in relation to which, such refund is claimed. Sub-section (2) of Section 11B mandates that upon receipt of any application for refund, the Assistant Commissioner or Deputy Commissioner, if he is satisfied that the duty is refundable, should make an order. The refund order is capable of being given effect to in several methods including adjustment or rebate of duty of excise, all of which are prescribed in Clauses (a) to (f) under the Proviso to sub-s....
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.... now raised. Unfortunately, in none of the decisions relied upon by the learned standing counsel, the Courts were confronted with an order of adjudication passed under Section 11B on an application. Once an application for refund is allowed under Section 11B, the expression "erroneous refund‟ appearing in sub-section (1) of Section 11A cannot be applied. If an order of refund is passed after adjudication, the amount refunded will not fall under the category of erroneous refund so as to enable the order of refund to be revoked under Section 11A(1). One authority cannot be allowed to say in a collateral proceeding that what was done by another authority was an erroneous thing. Therefore, the question of law has to be answered in favour of the appellant/assessee and the appeal deserves to be allowed." 6.2. Further, I find that the decision relied upon by the Revenue in the case of Axwel India Pvt. Ltd. (supra) is not applicable in the present case in view of the various decisions of the Hon'ble High Courts cited supra. Further, I find that the Division Bench of this Tribunal in the case of J.K. Tyre Industries has held that the test of unjust enrichment does not apply to the ca....