ORDER
V.T. Raghavachari, Member
1. In respect of sugar produced by M/s. Somaiya Sugar Works during the period 1.12.1974 to 30.9.1975 they had claimed rebate in terms of notification No. 152/74-CE dated 10.11.1974. The same had been granted to them and credited to their P.L.A. Subsequently notice dated 11.10.1977 was issued to them directing them to show cause why out of the said rebate a sum of Rs. 30349.74P, should not be recovered from them as no rebate was payable since they had suppressed the fact that duty actually paid on the levy sugar was less than the amount of rebate claimed. On receipt of reply denying the allegations ‘of suppression and further contending that the notice was barred by time, the Assistant Collector confirmed the demand raised in the notice and directed that a suitable debit may be made in the PLA. On appeal the Appellate Collector of Central Excise Madras under his order dated 15.12.1980 upheld the findings of the Assistant Collector that the assessee was not entitled to the rebate to the extent mentioned in the show cause notice but further held that the demand was barred by time. Accordingly he allowed the appeal and set aside the order of the Assistant Collector. Subsequently, the Central Government issued notice dated 27.5.1981 under Section 36(2) of the Central Excises and Salt Act as it was of the view that the order of the Appellate Collector was not proper, legal and correct. It was of the view that the demand was governed by rule 10-A of the Central Excise Rules and there was therefore no question of time bar. The assessee replied contesting the review notice It is the said proceedings that are, on transfer, now before us as this deemed appeal.
2. We have heard Smt. Dolly Saxena for the Department and Sh. D.N. Kohli, Consultant for the respondents.
3. The finding of the Assistant Collector, which according to the notice of the Government, is correct, is that the rebate granted was provisional and therefore could be later finalized by the Department. This Tribunal has in the case of M/s. Jagatjit Sugar Mills Company Ltd. (1985 ECR 746) disapproved of this view. It is further held that if a larger amount had been granted by way of rebate the said excess payment would be nothing but erroneous refund of duty and proceedings for recovery thereof would be governed by the appropriate provisions. The rebate had been granted in 1975 but the notice calling for recovery of the alleged excess refund was issued on 11.10.1977. Since the demand for recovery of excess refund was governed at the relevant time by rule 10 of the Central Excise Rules the recourse to Rule 10A under the review notice is not justified. Judged by the time limit under rule 10 the demand for recovery of excess refund was obviously barred by time as held by the Appellate Collector.
4. In the result we hold that the order of the Appellate Collector was correct and accordingly uphold the same, dismiss this appeal and discharge the review notice.