TaxTMI 
TaxTMI 
2020 (1) TMI 1448
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....siness of exploration, development and production of crude oil and natural gas. The Respondent is liable to pay Oil Industry Development Cess ("OID Cess) on the quantity of crude oil sold to the refineries as per section 15(1) of the Oil Industry Development Act, 1974 ('the OID Act'). Further, the respondent was also liable to pay Education Cess ('EC') and Secondary and Higher Education Cess ('SHEC') at the rate of 2% and 1% respectively of all duties on excise leviable by the Ministry of Finance (Department of Revenue). The Respondent was under a bonafide belief that EC and SHEC is payable on OID Cess as a duty of excise levied by the Ministry of Finance (Department of Revenue). Thus, the Respondent initially discharged EC and SHEC on OID ....
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....the period from July 2004 to December 2013 under Section 11B of the Central Excise Act, 1944. 2. Pursuant to refund claim, a Show Cause Notice ('SCN') dated 04.02.2015 was issued to the Respondent proposing to deny the refund of Rs. 2,52,66,33,609/- on the ground that such refund claim is hit by the element of 'unjust enrichment' as laid down in Section 11B(1) of the Act. Further, it was also alleged that major portion of the amount claimed as refund is time barred on the ground that the amount claimed is beyond one year from the relevant date as laid down in Section 11B(1) of the Act. The Respondent vide their letter dated 11.04.2015 filed detailed reply to the above SCN. Despite legal submissions made in the reply by the Respondent, th....
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....sent appeal. 4. The learned Authorized Representative appearing on behalf of the appellant Revenue submits that Section 35A(3) of the Central Excise Act, 1944 as it existed before 11.05.2001 provides that Commissioner(Appeals) shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling decision or order appealed against or may refer the case back to the adjudicating authority with such direction as he may think fit for a fresh adjudication or decision as the case may be, after taking additional evidence, if necessary. 5. The learned Advocate appearing on behalf of the respondent has submitted that the present appeal involves a substantial refund amount....
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....o consideration for remanding the case to adjudicating authority is delay in passing the order from the date of personal hearing. 9. We observe that the issue is no more res integra and has been decided by the Hon'ble Hon'ble Supreme Court in the case of Mil India Ltd. vs. Commissioner of C.Ex., Noida reported in 2007 (210) E.L.T. 188 (S.C.). The relevant portion of the decision is extracted below:- "4. In our view the High Court had erred in holding that the Tribunal could not have examined the question of dutiability, once on merits, the order of the Commissioner (A) dated 22-3-2000 became final. Firstly, one must understand that excisability is a matter of principle. The Tribunal is the highest authority in hierarchy to decid....
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.... provision for special audit. However, when the principle of law is evolved an appeal lies to the appellate Tribunal under the said Act. In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority....