ORDER
G.R. Sharma, Member (T)
1. This is an appeal against the findings of the Collector (Appeals) who placing reliance on the CEGAT Order No. 280/88-Bl dt. 2.5.1988 in the case of CCE, Bombay v. Universal Radiators Limited held that “I have considered the facts and records of the case together with the records of personal hearing. I am fully in agreement with the rationale adopted by the CEGAT. The department has nowhere pointed out that Notice under Section 11A was issued to the appellant in time. In the absence of any such notice, I find no reason to accept the appeal of the department. It is rejected.”
2. The facts of the case briefly stated are that the fespondents are manufacturers of M.S. Copper coated steel wires. They filed a refund claim on account of approval of classification list. The Asst, Collector sanctioned the refund claim. Tine Collector (Appeals) set aside the order on the ground that the principles of natural justice had not been followed and directed the Asst. Collector to readjudicate the case. The Asst. Collector decided that the M.S. Copper coated wires manufactured by the assessees are classifiable under T.I. 68 of the Central Excise Tariff and accordingly sanctioned the refund claim. An appeal was filed against this order, the Collector (Appeals) set aside the appeal filed by the department on the ground as stated above.
3. Arguing the case for the appellant, Shri R.S. Sangia, ld. JDR submitted that an application was made before the Collector (Appeals) under Section 35E(4) in pursuance of the directions issued by the Collector under Section 35E(2) of the Central Excises Act, 1944; that the Collector was requested to examine the merits of the erroneous sanction of the part of the refund by the Asst. Collector; that the Collector (Appeals) did not examine the merits’ of the prayer but rejected the same on extraneous and secondary ground of issue of Notice under Section 11A ibid.; that Section 11A is not an exclusive provision but an alternative provision for the recovery of the erroneously sanctioned refund. Ld. JDR submitted that the proceedings under the provision of Section 35E(2) read with Section 35E(4) was initiated in this case within the stipulated period as provided thereunder and that the amount erroneously refunded is correctly recoverable under those provisions and that the order of the Collector (Appeals) is incorrect and wrong and prayed that the same may be set aside and the appeal may be allowed. He also referred to the decision of the Madras High Court in the case Sivanandha Pipe Fittings Limited 1998 (97) ELT 52. In this case, the Hon’ble Madras High Court held that “The argument is that the appellate authority cannot by himself direct the recrediting of the amount refunded to the appellant, but he could have left it open to the original authority to invoke Section 11A by issuing necessary notice. We are of the opinion that this would have been an unnecessary exercise. Where several remedies are open to the authorities and one remedy is resorted to, it cannot be said the same is illegal so long as the provision of law permits the same. Having held that the order of refund was illegal, which is not questioned before us, it is totally improper to say that the amount received by the appellant should not be recredited to the department. It cannot be forgotten that a provision of law has to be interpreted in a manner which will subserve the maintenance of justice. We cannot be persuaded to interpret the provision of law in such a manner and in the sense that the amount erroneously refunded to the appellant should remain with him. It is the natural consequence of the order of the appellate authority that the amount erroneously refunded should be recredited to the department. We do not find any substance in the argument of the appellant that without the original authority invoking Section 11A, the direction to re-credit the amount cannot be upheld. Consequently, the view taken by the learned Single Judge is approved and the writ appeal is dismissed. No costs. In view of the disposal of the writ appeal, C.M.P. No. 9662 of 1992 also is dismissed.”
4. Shri K.K. Gupta, ld. Advocate for the respondents submitted that the similar issue came up before the Tribunal in the case of CCE v. Universal Radiators Limited wherein the Tribunal held that “The only way by which an erroneously refunded duty can be recovered is a notice under Section 11A; an application and proceedings under Section 35E are not a step in that direction. If it were, then the department can, by using this section, recover erroneously refunded duty or short-levied duty for which no notice was issued within the time specified under Section 11 A, the primary and fundamental section and the fountain head of all the powers for recovery of any money erroneously refunded. Thus, by resort to Section 35E, the department can recover erroneous refunds that had long become barred by limitation under Section 11A. All such notices will be out of time and illegal.” Ld. Counsel submitted that the Apex Court in the case of CCE v. Re-rolling Mills held that “The learned Counsel for the parties do not dispute that this appeal is covered by the judgement of this Court in UOI v. fain Shudh Vanaspati . In that case, the court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgement, the appeal is dismissed with no order to costs.” He submitted that in the case of Jain Shudh Vanaspati Limited , the Apex Court held that the High Court was, therefore, in error in coming to the conclusion that no show cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130. Ld. Counsel submitted that this decision of the apex court was followed by the Tribunal in the case of Rosemount (India) Limited v. CCE holding that “Notwithstanding the order passed by the Commissioner (Appeals) under Section 35E, in the absence of notice under Section 11A for recovery of erroneous refund within the time limit prescribed therein, such recovery is hit by limitation.” He, therefore prayed that the appeal may be rejected.
5. We have considered the rival submissions. We find that the matter is finally settled by the rulings of the apex court in the case of Re-rolling Mills. Following the ratio of the above judgement, we uphold the impugned order and reject the appeal.
Operative portion of the order was already pronounced in Court.