2025 (11) TMI 1433

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....he Central Excise Act, 1944 alleging erroneous refund, when the refund claim was filed after issuance of a Final order No. 21275/2015 dated 05.06.2015 by the Tribunal without challenging the said Final order before the Appellate forum. 3. The brief facts are the Appellant is a manufacturer of asbestos cement products and during March 2006 to July 2006, Appellant had offered quantitative discount to their buyers and Appellant have issued only credit notes to their customers. Appellant used to make payments of central excise duty on the products manufactured by them provisionally and after post clearance of goods, once discount and the value is finally determined, discount amount is given or passed on to the dealer, ultimate customers and ....

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....01.01.2015 to 30.06.2015 V/20/07/2017 Adjn dtd.28.3.17 16,44,933/- 6 01.07.2015 to 30.11.2015 V/20/08/2017 Adjn dtd.30.3.17  7,68,283/-                               Total Rs.62,15,161/- 4. The Appellant contested all the 6(six) SCNs on several grounds by placing reliance on various decisions and inter alia contended that there were no erroneous refunds and invocation of demand provisions under section 11A was unwarranted apart from being time-barred inasmuch as no extended period was even alleged/invoked in the notices. However, the Adjudicating Auth....

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....ad). 6. The Appellant further submits that it is well settled that when there is an order sanctioning refund and the said order was not challenged in appeal by the department, the Department cannot take recourse to section 11A of the Central Excise Act. 1944 for recovery of alleged erroneous refund and hence the demand cannot be sustained in law. In this regard, the Appellant places reliance on following decisions- (a) ELT 189 (Eveready Industries India Limited Vs. CESTAT, 2016 (337Mad.). (b) Voltas Ltd Vs. CCE, 2006 (202) ELT 355 (Tri-Bang.). (c) CCE Vs. Panyam Cements & Minerals Inds Ltd, 2016 (331) ELT 206 (AP). (d) CCE Vs. Jellapore Tea Estate, 2011 (268) ELT 14 (Gau.). (e) Bridgestone Ind....

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....is also issued against each refund  claim. Facts being so, Demand cum show cause notice without challenging the said refund order is prima facie unsustainable. In this regard, Learned Counsel draws our attention to the decision of the Tribunal in Appellant's own case in M/s. Visaka Industries Ltd. Vs. Commr. of Cus., C. Ex. & ST., Bangalore (2019 (369) E.L.T 1575) (Tri. - Bang.) where it is held that:- "6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, the appellants were clearing the goods to their dealers from the factory gate and were paying the duty on the prevalent prices and later on the appellant issued the credit notes to the dealers which r....

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.... in pursuance of the said order of finalization then without issuing the SCN, the original authority has rejected the refund claim on the ground that the appellants have not filed the documents and also relying upon the decision of the Hon'ble Apex Court in the case of Addision & Co. The appellant filed appeal before the Commissioner (Appeals) who also rejected the same by referring only to the decision of the Hon'ble Apex Court in the case of Addision & Co. Further, I note that once the Revenue has not challenged the order of finalizing provisional assessment then it cannot reject the refund claim without issuing proper SCN. Further, in the appellant's own case, the Mumbai Tribunal has allowed the refund claim after the decisio....