COMMISSIONER OF CENTRAL EXCISE Vs. JELLALPORE TEA ESTATE

JUDGEMENT

(1.) THIS Appeal under Section 35g of the Central Excise Act, 1944 (hereinafter referred to as the Act) is directed against the judgment and order dated 18. 06. 2004 passed by the Customs, Excise and Services Tax Appellate Tribunal, Eastern Zone Bench, Kolkata. By the aforesaid order the learned Tribunal has interfered with the notice issued to the Respondent Company under Section 11a of the Act for recovery of an amount of Rs. 16,09,687/- being Central Excise Duty erroneously refunded to the Respondent Company by the Appellant. The learned Tribunal by the aforesaid order also held that the appropriate course of action for the Revenue would have been to challenges the order of refund passed by the Assistant Commissioner under the provisions of Section 35e (2) of the Act.

(2.) THE facts are short and may be summarized in a nutshell: on a claim made by the Respondent Company that its manufacturing unit located in the Cachar District of the State of Assam had undergone expansion by more than 25% of its installed capacity after 24. 12. 1997, exemption from payment of excise duty in terms of the Notification No. 33/99-CE dated 08. 07. 1999 was sought by the Respondent Company. Exemption in terms of the aforesaid notification was to be granted in the form of refund of duty to eligible units. Accordingly, the Assistant Commissioner by order dated 30. 04. 2002 granted provisional refund of Central Excise Duty paid by the Respondent Company for the period October 2000 to March 2002 amounting to Rs. 16,09,687/ -. Thereafter, a show cause notice under Section 11a of the Act dated 06. 08. 2002 was issued by the Commissioner of Central Excise, Shillong seeking recovery of the refund paid on the ground that such refund was claimed and erroneously granted on the basis of certain fabricated documents. The Commissioner of Central Excise confirmed the demand under notice dated 06. 08. 2002 issued under Section 11a of the Act and also directed the Respondent Company to pay interest on the amount due under Section 11a B of the Act. No penalty was, however, imposed. Aggrieved, the Respondent Company challenged the aforesaid order of the learned Commissioner before the Tribunal. The learned Tribunal took the view that the correct course of action for the Revenue would have been to avail of the remedies provided by Section 35e (2) of the Act, which, however, was not done within the period of time prescribed by the Act. The learned Tribunal also took the view that as the refund of duty paid to the Respondent Company was provisional, the notice under Section 11a of the Act could not have been issued. In this regard reliance was placed by the learned Tribunal on a decision of the Madras High Court reported in 1994 (73) ELT 272 Ponds (India) Ltd. Vs. Assistant Collector of Taxes, Madras.

(3.) WE have heard Sri D. C. Chakraborty, learned CGC appearing for the Appellant and Sri N. Choudhury, learned counsel for the Respondent Company.