JUDGMENT
Archana Wadhwa
1. Briefly stated the facts of the case are as under:-
1.1 The appellant filed a refund claim on 1.4.97 for an amount of Rs. 16.,642.97 on the ground that the actual rate of duty applicable on 1.3.97 and 2.3.97 in respect of Glass and Glassware was 8% Adval. whereas they had cleared the goods by paying duty at the rate of 10% Adval.. The said refund claim was considered by the Assistant Commissioner of Central Excise who vide his order dated 9.5.97 sanctioned the refund claim an allowed the appellant to take the same as credit in the RG 23A Part II.
1.2 Subsequently, the Revenue felt that the said refund claim was not admissible to the appellant on account of the duty burden having been passed to their buyers. Accordingly, a show-cause notice was issued on 4.11.97 under the provisions of Section 11A of the Central Excise Act 1944 proposing recovery of erroneously granted refund. The appellant during adjudication as also before the Commissioner (Appeals) took number of pleas including the one that the Assistant Commissioner could not have reviewed his order of refund and as such the show-cause notice issued under Section 11a of the Act was not valid. They also argued that the excess amount of duty recovered from their customer has been paid back to them by issuance of credit note and as such the provisions of unjust enrichment did not apply.
1.3 The said submissions of the appellant did not find favour with the original authorities as well as with the appellate authority who confirmed the demand of duty of Rs. 16,642.97.
2. I have heard Shri B.N Chattopadhyay, ld. Consultant for the appellants and Shri V.K. Chaturvedi, ld. SDR for the Revenue.
3. I find that the Assistant Commissioner had issued the refund order allowing the appellant to take credit of the same in their RG 23A Part II. However, the said refund order passed by the Assistant Commissioner was not appealed against. Instead of show-cause notice under Section 11A for recovery of erroneously granted refund was issued. The Tribunal in the case of Digvijay Cement Co. Ltd. v. Commr. of Central Excise reported in 1991 (52) ELT 631 (T), relying upon the earlier order of the Tribunal in the case of Commr. of Central Excise v. 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 35E (2), is longer than the time-limit prescribed under Section 11A, the show-cause notice should precede the proceedings under Section 35E (2), otherwise the order under Section 35 (2) becomes an empty formality and is not enforceable. Similarly, even if the show-cause notice is issued for recovering the erroneous refund within the time-limit prescribed under Section 11A without setting aside the order granting erroneous refund under Section 35E (2), no 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.”
4. A reading of the above para shows that the Department was required to take action for recovery of 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 be held to be a valid proceedings. As such without going into the question as to whether the refund granted to the appellant was paid by them to their customer or not, I set aside the impugned order on this ground alone and allow the appeal with consequential relief to the appeal. Stay petition also gets disposed of.
(Pronounced)