TaxTMI 
TaxTMI 
2025 (11) TMI 941
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The Respondent-Assessee was filing the refund claim of the un-utilised Cenvat credit under Rule 5 of the Cenvat credit Rules, 2004 and they have filed 26 refund claims on monthly basis during the period March 2012 to July 2014 and the said refund claims were allowed vide various speaking orders passed from time to time as mentioned in the impugned order at page 26. Thereafter, the department entertained the view that Respondent-Assessee has erroneously filed the refund claims during the relevant period in violation of the safeguards, limitations and conditions provided under para. 2.0 of the Notification No. 27/2012-C.E. (N.T.) dated 18.06.2012. On these allegations, a show cause notice dated 21.01.2015 was issued and thereafter, after the following due process, the Learned Commissioner has held that the filing of multiple refund claims for a single quarter is only a procedural lapse, and substantial benefit of refund cannot be denied due to procedural irregularity. Further, the learned Commissioner dropped the penalty under Section 11AC owing to absence of the ingredients for invoking the said provision. Aggrieved by the impugned order, the department has filed the present appeal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent for recovery of any money erroneously refunded. Section 11A is the fountain head of all the powers for recovery of any money erroneously refunded. There are no preconditions attached for issuance of notice under Section 11A for recovery of the amount erroneously refunded. There is no requirement of passing an adjudication order and if adjudication order is passed, there is no need to initiate appellate proceedings before issuing notice under Section 11A. Second proviso to Section 35A(3) which states that no order-in-appeal requiring the appellant to pay any duty erroneously refunded shall be passed unless the Appellant is given show cause notice within the time limit prescribed in Section 11A also shows that Section 11A is a independent substantive provision and it is a complete code in itself for realization of excise duty erroneously refunded. Under the circumstances, the contention of the Petitioner that notice under Section 11A could not be issued without challenging the Order-in-Original is without any merit". 4.3 Learned AR further submits that the learned Commissioner has wrongly held that extended period has been wrongly invoked, the learned AR further submits that a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amount has been "erroneously refunded". For this, she relied upon the following decisions: * Commissioner Of Service Tax, Delhi vs. Colt Technologies Services India Pvt. Ltd. 2025 (4) TMI 10-CESTAT Chandigarh. * Topcem India 2021 (376) E.L.T. 573 (Gau.). * Narbada Industries 2022 (5) TMI 1361 (J&K ), * RNB Carbides & Ferro Alloys Pvt Ltd 2021 (378) E.LT. 474 (Tri.. Kolkata). * Tripura Ispat 2021 (1) TMI 753-(Tripura). * Bridgestone India Private Limited 2022 (9) TMI 675 CESTAT New Delhi, * Eureka Forbes Ltd 2018 (8) TMI 1288-CESTAT Bangalore. * Bharat Box Factory Limited 2018 (5) TMI 1346-CESTAT Chandigarh. 5.2 She further submits that the refund sanctioned order passed by the Deputy/Assistant commissioner allowing the 26 refund applications filed by the Respondent-Assessee has not been challenged by way of an appeal and the said refund order were passed after proper application of mind and by passing of speaking orders and therefore, cannot be said to be 'erroneous refund' for the purposes of section 11A of the Act. For this, she relied upon the following decisions: * CCE v. Jellalpore Tea ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R&D Institute India Bangalore Pvt Ltd 12019 (7) TMI 1418-CESTAT Bangalore * Robert Bosch Engineering and Business Solutions Limited 2017 (12) * TMI 836-Cestat Bangalore. * Colt Technologies (Supra) 5.4 The learned counsel further submits that the contention of the department that the Ld. Commissioner has not considered the Notification No 27/12-CE dated 18.06.2012 whereas the fact of the matter is that the impugned order has duly considered the new Notification prescribing conditions for filing refund claims, and after considering the said Notification the Ld. Commissioner has held that the it is only a procedural violation and the same has not been appeal against by the Department. 5.5 As regards the extended period of limitation, the learned Counsel submits that the extended period in the present case cannot be invoked as the refund has been sanctioned by the Department by way of a speaking order and the department had sufficient information to issue the show cause notice within the normal period of limitation. Thus, the recovery of refund for the period prior to Jan 2014 is not sustainable. Further, the allegation of the department is that the Re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mits that reliance of such judgment is mis-placed for the reason that in the said decision the refunds were expressly conditional, granted with a clear stipulation that they were subject to outcome of pending litigation before the Supreme Court. Further, the assessee even gave an undertaking to repay the refund if the Supreme Court ruled against them. She further submits that in the present case the refunds were final and unconditional sanctioned through 26 independent speaking orders without any reservations or conditions and the Department never challenged these orders, allowing them to attain finality. She further submits that this Tribunal in the case of Commissioner Of Service Tax, Delhi vs. Colt Technologies Services India Pvt. Ltd. cited (Supra) has already considered this decision of the Indian Dyestuff cited (Supra) and has held that without challenging the impugned order, the department cannot proceed to issue show cause notices, Show cause notices cannot be issued without reviewing the orders of the lower authority sanctioning the refunds. She also submits that the reliance placed by the Department in the case of Grasim Industries Ltd. vs. Commissioner of Central Excise ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mission of the learned counsel for the appellant that if the orders granting refund under section 118 of the Excise Act had attained finality, a show cause notice under section 11A of the Excise Act could not have been issued has to be examined. 36. Section 11A of the Excise Act does provide for recovery of duties erroneously refunded, but it duties have been refunded pursuant to orders passed under section 118 of the Excise Act, it is not possible to hold the powers under section 11A of the Act can still be exercised for refund of the amount as this will not fall in the category of 'duties erroneously refunded. It also needs to be noted that an appeal can be filled to the High Court against the order passed by the Tribunal and if this power has not been invoked, it will not be open to the Department to take recourse to the provisions of section 11A of the Excise Act. 37. The Commissioner, therefore, could not have issued the show cause notice dated 30.08.2017. In the present case, as under section 11A of the Excise Act when the order passed by the Tribunal in proceedings arising out of section 118 of the Excise Act had attained finality. 38. This iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er evidence, in relation to which, such refund is claimed. Sub-section (2) of Section 118 mandates that upon receipt of any application for refund, the Assistant Commissioner or Deputy Commissioner, it ne 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-section (2) of Section 11B. 32. It is only when an order of adjudication is passed under Section 118 that a person, who makes a claim for refund, will get his money back. This assumes significance in the light of the fact that by the proceedings dated 29-9-1998, the appellant/assessee was informed of the sanction granted by the Assistant Commissioner to make a refund of a sum of Rs. 3,31,365/- arising as a consequence of the finalisation of assessment. 33. In simple terms, the refund that the appellant got was and should have been only after an adjudication under Section 118 and not without an adjudication. It must be pointed out that if an authority has done something, it must be presumed that he has done ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stion of law has to be answered in favour of the appellant/assessee and the appeal deserves to be allowed." 40. The Gauhati High Court in Commissioner of Central Excise, Shillong vs. Jellapore Tea Estate (2011 (258) E.LT. 14 (Gau.)) observed that the Revenue cannot take recourse to section 11A of the Excise Act when it had a statutory remedy available to it to challenge the order by resorting to the powers under the Excise Act. 41. The Gujarat High Court in Commissioner of Customs vs. Millat Fibres (2011 (271) E.L.T. 512 (Guj.)] held that a show 4 cause notice issued by the Adjudicating Authority on the ground of 'unjust enrichment would amount to review of its own order granting refund, which is not permissible. The relevant paragraphs are reproduced below "7. The record of the case indicates that vide order dated 22nd February, 2005, the adjudicating authority had adjudicated on the claim of refund made by the respondent. At the relevant time, it was permissible for the adjudicating authority to go into all issues which were necessary to be looked into for the purpose of deciding the application for refund, including the aspect of unjust enrichment.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....had been ordered to be appropriated against outstanding Government dues. The adjudicating authority has power or authority under the Act to reconsider or review or alt in appeal over its earlier order. No such power or authority has been pointed out by the learned counsel for the appellant. 9. In the aforesaid tactual background, the Commissioner (Appeals) was justified in holding that the show cause notice issued by the adjudicating authority on the ground of unjust enrichment, would amount to review of his own order which was not permissible. The view expressed by the Commissioner (Appeals) that the proper course of action was for the Department to review the order under Section 1290(2) of the Act and thereafter file appeal under Section 1290(4) is in consonance with the provisions of the Act. The impugned order of the Tribunal whereby it has confirmed the findings recorded by the Commissioner (Appeals) does not suffer from any legal infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal." 42. It is, therefore, more than apparent that section 11A of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Excise Vs. Krishi Rasayan Exports Pvt. Ltd. reported in 2023 (7) TMI 661 -Jammu and Kashmir, wherein the Hon'ble High Court in para 16 & 17 has held under: 16. We find that learned Authorised Representative relies on the decision of Hon'ble Supreme Court in the case of M/s Grasim Industries (supra). However, Hon'ble Guwahati High Court in the case of Jellapore Tea Estate (supra), which was followed by Hon'ble J&K High Court in the case of Mis Krishi Rasayan Exports Pvt Ltd (supra), which the High Court of JK further followed in Crystal Corporation Production Ltd. (supra), after considering the case of Grasim Industries held as under 20. From a reading of para 10, it clearly transpires that the Supreme Court has only held that, once a show cause notice, in terms of section 11A of the Act has been issued by the revenue department to the assessee for recovery of erroneous refund made to it, the remedy of the aggrieved assessee is provided under section 11A itself. The judgment therefore cannot be held to lay down a proposition of law that section 11A is invocable even in a case where there is no erroneous refund, rather the refund of the excise duty is p....