The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai Bench held that no recovery on claim of erroneous refund when adjudication has taken place under Section 11B of Central Excise Act, 1994.
The allegation by the Revenue is that the penalty on the above dealers has been imposed as they have aided and abetted the Appellant 1, M/s. CNH Industrial (India) Pvt Ltd by willfully furnishing fraudulent documents so as to enable them file the refund claim.
The Counsel for the Revenue submitted that the appellant has admitted in their statements that they had obtained dated receipt of the cheques of differential amount the taxi owners without physically handing over these cheques to the taxi owners. Photocopies of the cheques were forwarded to M/s Premier Automobiles Ltd (M/s PAL) for filing the refunds.
It is quite evident that we are in the third round of litigation now. Matter has been remanded back to the original authority for redetermination and verification of the documents, submitted by the appellant 1, claiming that they have refunded the entire amount to individual taxi owners, which has been claimed by them as refund in terms of Notification No 4/97-CE and 5/98-CE.
In terms of these notifications in respect of the motor cars cleared from the factory of the manufacturer, the partial refund of duty was given in respect of the duty paid at the time of clearance of the said motor cars, if they were subsequently registered as taxi, subject to the fulfilment of the conditions as specified in the said notifications.
A Coram consisting of Sanjiv Srivastava, Technical Member and Suvendu Kumar Pati, Judicial Member relied on the judgment in Honda Siel Power Products, wherein the Allahabad High Court held that “Once the adjudication has taken place under Section 11B of Central Excise Act cannot proceed to recover on the basis of “erroneous refund” under Section 11A so as to enable the refund order to be revoked, as the remedy lied under Section 35E for applying to the Appellate Tribunal for determination and not invoking Section 11Aof Central Excise Act.”
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