Customs, Excise and Gold Tribunal - Calcutta
M/S Gillooram Gaurishankar vs C.C.E., Jamshedpur on 31 July, 2001
Equivalent citations: 2001(138)ELT372(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. The issue involved in the present appeal is recovery of erroneously granted refund of Rs.27,628/- (rupees twenty seven thousand six hundred twenty eight only) under the provisions of Section 11A. It is seen that the appellants were sanctioned the refund claim of the above amount under the provisions of Rule 57F(3) for export of ACSR Conductors and Aluminium Binding Wires Subsequently, the Revenue entertained a view that since the aluminium bending wire was not declared as one of the final product int he appellant's Modvat Declaration submitted under Rule 57G, the refund of Modvat credit availed by them on the inputs, i.e. aluminium wire road was not available to them. On the other hand the appellants' contention was that they had declared aluminium binding wires as one of the final product. The said contention was not accepted by the Authorities below and the demand of duty was confirmed against them along with imposition of personal penalty of Rs.5,000/- (rupees five thousand only).
2. I have heard Shri B.N. Chattopadhaya, learned Consultant for the appellants and Shri A.K. Chattopadhaya, learned JDR for the Revenue. It is seen that apart from issuing Show-cause Notice, no appeal was filed against the refund claim sanctioned by the Revenue. The Tribunal in the case of Digvijay Cement Co. Ltd. vs. C.C.E. reported in 1991 (52) ELT 631 (T), relying upon the earlier Order of the Tribunal in the case of C.C.E. vs. universal Radiators Ltd., has taken the following view in para 8 of their judgment:-
"8. However, the Order passed under Section 35E(2) does not automatically result in recovering the erroneous refund. This order should be followed by a Show-cause Notice under Section 11A, according to which the Show-cause Notice should be issued within six months from the date of actual refund. Since the time-limit for filing an appeal under Section 11A, the Show,cause Notice should precede the proceedings under Section 35E(2), otherwise the order under Section 11A without setting aside the order granting erroneous refund under Section 35E(2), non erroneous refund can be recovered. Therefore, the Department should initiate proceedings simultaneously under Section 11A within the time-limit prescribed therein and also under Section 35E(2) within the time-limit prescribed therein."
3. A reading of the above para shows that the Department was required to take action for recovery of the erroneous refund under the provisions of Section 11A as well as Section 35E(2). In the instant case no appeal has been filed against the refund order, issuing of Show-cause Notice under the provisions of Section 11A without seeking setting aside of the refund order cannot held to be a valid proceedings. As such without going into the question as to whether the aluminium binding wire was a declared final product or not, I set aside the impugned order on this ground alone and allow the appeal with consequential relief to the appellant(s).
(Pronounced)