CCE Vs. WELD FLUX INDUSTRIES

JUDGEMENT

(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 respondents 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.) 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.