Custom, Excise & Service Tax Tribunal
Commissioner Of Cen.Excise, Mumbai.Ii vs M/S. Vikas Testing & Development Lab on 17 October, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. III
APPEAL NO. E/2419, 2420/02-Mum
(Arising out of Order-in- Appeal No. RJB/M.II/38-39/2002 dtd. 16.4.2002 passed by the Commissioner of Central Excise & Customs, Mumbai.II )
For approval and signature:
Honble Jyoti Balasundaram, Vice President
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Commissioner of Cen.Excise, Mumbai.II
:
Appellant
VS
M/s. Vikas Testing & Development Lab
M/s. Mac Laboratories Ltd.
Respondent
Appearance
Shri H.B.Negi, SDR for Appellant
Shri H.G.Dharmadhikari, Advocate for the respondents
CORAM:
Ms. Jyoti Balasundaram, Vice President
Date of hearing: 17/10/08
Date of decision :23/10/08
ORDER NO.
Per : Jyoti Balasundaram
The respondents herein availed modvat credit on the basis of endorsed invoices. Show cause notices were issued for recovery of credit on the ground that such invoices were not valid duty paying documents for the purpose of credit availment. The demands were confirmed; but was set aside by the Commissioner(Appeals). On the demands being set aside, the respondents filed claims for refund which were sanctioned by the adjudicating authority and upheld by the Commissioner(Appeals) vide the impugned order. In the meanwhile, the Revenues appeals against setting aside of the demands were allowed by the Tribunal. The present appeals are against the sanction of the refunds on the ground that the order of setting aside of the demands was challenged before the Tribunal.
2. I have heard both sides. When the demands were set aside, refund was sanctioned to the assessee; once the demands were upheld by the Tribunal, the assesses were required to make restitution of the amounts refunded to them by the Revenue pursuant to the order of the Commissioner(Appeals), in the light of the Apex Court decision in Commissioner of Central Excise, Shillong vs Woodcraft Products Ltd [ 2002(143)E.L.T. 247(S.C.). The ld.counsels submission that notice under Section 11A is required to be issued for recovery of erroneous refund, cannot be accepted in view of the Apex Court decision cited supra. The Tribunals decision in Mukund Ltd vs. Commissioner of Cen.Excise [2007(220)E.L.T. 226] holding that show cause notice for recovery of erroneous refund was necessary, and distinguishing the Apex Court judgment in Woodcraft Products Ltd. supra, does not come to the rescue of the respondents, for the reason that the Tribunal had held that what weighed with the Apex Court was the undertaking given by the assessee that refund which was sanctioned to them, would be returned to the Revenue, if held against them, while it is clear from the Apex Court judgment in Woodcraft Products Ltd. that the assesses were obliged to make restitution of the refund made pursuant to the Tribunals order which was subsequently reversed by the Apex Court.
4 In the light of the above discussion, I hold that the assesses are required to return the refund amounts, set aside the impugned order and allow the appeals.
(Pronounced in court on 23/10/08) Ms. Jyoti Balasundaram Vice President pv 3