FLORIDA ELECTRICAL INDUSTRIES Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) M/s. Florida Electricals Industries Ltd. have filed the present appeal against the dismissal of their refund claim.

(2.) Shri J.S. Agarwal, learned Advocate, submitted that the appellants manufacture electrical fan, fittings and geysers; that Central Excise officers searched their premises on 22 -9 -2001 and Anil Kumar Arora on pressurisation by the officers deposited Rs. 15,00,000/ -; that show cause notice has been issued to them only on 25 -3 -2003 after about 17 months of the search; that though they have filed detailed reply to the show cause notice and they have also appeared personally on 15 -2 -2003, no adjudication order has been passed by the adjudicating authority nor money has been returned to them; that they, therefore, had filed a claim for refunding the amount of Rs. 15,00,000/ - paid by them; that Deputy Commissioner has rejected their refund claim on the ground that Anil Kumar Arora has admitted in his statement that the goods had been cleared without payment of duty and the money was deposited voluntarily; that similarly, C.V. Mathew, Accounts Officer, authorised signatory of the appellants, had also admitted the clearance of goods without payment of duty; that show cause notice as per proviso to Section 11A of the Central Excise Act, can be issued within 5 years and in case, no show cause notice is issued only then the appellants can approach for refund; that on appeal, the Commissioner (Appeals) also has rejected their appeal on the ground that the case is under process of adjudication and actual liability is to be ascertained. The learned Advocate further submitted that the appellants are entitled to get refund of Rs. 15,00,000/ - which has been wrongly retained by the department without any authority; that as the department has not determined their duty liability even after the lapse of more than 30 months, they are eligible to get the money back.

(3.) Countering the arguments, Mrs. Charu Baranwal, learned S.D.R. reiterated the findings as contained in the order -in -original as well as order -in -appeal and emphasised that as the show cause notice has been issued and the matter has been heard, the process of adjudication is in progress and in case, the appellants are found to have removed the goods without payment of duty, they would be liable to pay the same which could be adjusted out of the amount voluntarily deposited by them during the course of investigation.