TaxTMI 
TaxTMI 
2024 (12) TMI 892
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.... to be taken in appeal before the higher court otherwise, no recovery of the refund can be made by way of issuing show cause notice ? (ii) Whether in the facts and circumstances of the case, the CESTAT is right in upholding the refund on the ground that the goods were sold based on Cubic Meters (CBM), hence in some cases, number of logs would have decreased while selling the goods, totally ignoring the strict compliance with the various conditions of Notification No. 102/2007-Cus.? (iii) Whether in the facts and circumstances of the case, the CESTAT is right in deciding the case on the ground that the CESTAT vide order dated 30.10.2013 upheld the sanction of the refund and dismissed the revenue's appeal, which order has attained finality as the revenue has not further challenged it, whereas the said order dated 30.10.2013 was in fact challenged by the revenue by way of filing Tax Appeal before the Hon'ble High Court, which is still pending? (iv) Whether in the facts and circumstances of the case, the CESTAT is right in relying on the certificates issued by the statutory auditor without examining various evidences emerged during investigation indicating that the ref....
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....sions made by both sides came to the conclusion that the order passed by the Tribunal confirming the sanction of the refund has attained finality, the revenue could not have initiated the fresh proceedings on the basis of investigation . The Tribunal has observed as under :- "5.1 It is observed that against the Orders sanctioning their refund claim, the revenue had filed appeal before the Commissioner (Appeals) who vide Order in Appeal No.38 to 235/2013/CUS/COMMR(A)/ dated 14.03.2013 dismissed the revenue's appeal. Being aggrieved by the Order-In-Appeal dated 14.03.2013 revenue further taken up the matter before the CESTAT and the CESTAT vide order dated 30.10.2013 upheld the sanction of the refund and dismissed the revenue's appeal. The said tribunal's order was not further challenged by the revenue therefore, the orders sanctioning the refund attained finality. In this circumstances, the refund sanctioned by the original authority being attained finality upto the CESTAT cannot be called as erroneous refund therefore, the proceeding for recovery of the said refund treating as erroneous is absolutely illegal and unwarranted in the eyes of law. In the present matters S....
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.... of the Act is reviewed and that too within the time limit prescribed under Section 11A and that as such notice under Section 11A must precede within the time limit prescribed under Section 11A before the notice under Section 35E of the Act is concerned, as such the aforesaid issue is now not res integra in view of the direct decision of this Court in the case of Asian Paints (India) Ltd. (supra). 7.3 In the case of Asian Paints (India) Ltd. (supra), the decision which has been rendered subsequent to the decision of the High Court in the case of Bajaj Auto Ltd (supra) it is observed and held as under: "We have read the judgments of the larger Bench of the Customs, Excise and Gold (Control) Appellate Tribunal, which are impugned in these appeals. We are of the view that the judgments viewed Section 35-E and 11-A of the Central Excise Act in the proper perspective. The two sections operate in different fields and are invoked for different purposes. Different time-limits are, therefore, set out therein. We do not accept the contention that recovery of excise duty cannot be made pursuant to an appeal filed after invoking the provisions of Section 35-E, if the time limit provided ....
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....), Mumbai dated 13.05.2005 is hereby restored. However, in the facts and circumstances of the case there is no order as to costs. From the above judgment of the Hon'ble Supreme Court, it is settled that when there is an order for sanction of refund and if at all the same is required to be recovered, it is that very order which is to be taken in appeal before the higher court otherwise, no recovery of the refund can be made by way of issuing another show cause notice and order for recovery in the said show cause notice. In the present case, when the refund sanctioning order has been upheld upto the CESTAT and no further appeal was preferred by the revenue, the revenue could not have proceeded for recovery by issuing a fresh show cause notice therefore, in view of the above Hon'ble Apex Court judgment, the action of the revenue for recovery of so called erroneous refund in the present case is absolutely illegal. Somewhat similar issue has been considered by the Hon'ble Madras High Court in the case of M/s. Eveready Industries India Ltd. v. CESTAT, Chennal 2016-TIOL-676 HC-Mad-CX 2016 (337) E.L.T. 189 (Mad.). The issue that came up for consideration in the said case ....