Commissioner of Central Excise Vs. Hivoltrans Electricals Pvt. Ltd. - Court Judgment

Excerpt:
1. the application filed by the assess, the respondent to this appeal, for refund of duty paid in excess was sanctioned by the assistant commissioner, and, as requested it, was permitted to take credit in its modvat account of the amount referred which it did on 28.6.1995. notice signed on 20.2.1995, and acknowledged by the assessee on 21.2.1995 proposed recovery of the refund on the ground that it was wrongly sanctioned. the assistant commissioner passed orders ordering recovery of the refund on the ground that the sanction was contrary to law. the assessee appealed to this order. the commissioner (appeals) accepted one of the ground sin the appeal that the notice was beyond the period of six months specified in section 11a of the act, if reckoned the date of the order of the assistant commissioner sanctioning refund. he therefore allowed the appeal.2. the appeal by the commissioner against this order contends that it is the date of actual payment of refund i.e. the date on which credit was taken of the refund order on 26.8.1994 that has to be the starting point in reckoning the period of limitation. by doing so, the notice issued under section 11a of the act is in time. this point is not seriously contested by the representative of the respondent and in any event has to be accepted, by applying the ratio of the judgment of the supreme court in geep flashlight industries ltd. v. union of india 1983 (13) elt 1596. it will then follow that the notice issued for recovery of the refund was within time.3. however, the representative of the respondent contends that even so, the assessee was entitled to refund and the commissioner (appeals) has not considered the issue on merits. this is seen to be correct and the matter will have to go back before the commissioner (appeals) for disposing of the appeal on merits.4. the appeal is accordingly allowed and the impugned order set aside, the matter being remanded to the commissioner (appeals) for disposing of the appeal on merits in accordance with law.

Judgment:
1. The application filed by the assess, the respondent to this appeal, for refund of duty paid in excess was sanctioned by the Assistant Commissioner, and, as requested it, was permitted to take credit in its modvat account of the amount referred which it did on 28.6.1995. Notice signed on 20.2.1995, and acknowledged by the assessee on 21.2.1995 proposed recovery of the refund on the ground that it was wrongly sanctioned. The Assistant Commissioner passed orders ordering recovery of the refund on the ground that the sanction was contrary to law. The assessee appealed to this order. The Commissioner (Appeals) accepted one of the ground sin the appeal that the notice was beyond the period of six months specified in Section 11A of the Act, if reckoned the date of the order of the Assistant Commissioner sanctioning refund. He therefore allowed the appeal.

2. The appeal by the Commissioner against this order contends that it is the date of actual payment of refund i.e. the date on which credit was taken of the refund order on 26.8.1994 that has to be the starting point in reckoning the period of limitation. By doing so, the notice issued under Section 11A of the Act is in time. This point is not seriously contested by the representative of the respondent and in any event has to be accepted, by applying the ratio of the judgment of the Supreme Court in Geep Flashlight Industries Ltd. v. Union of India 1983 (13) ELT 1596. It will then follow that the notice issued for recovery of the refund was within time.

3. However, the representative of the respondent contends that even so, the assessee was entitled to refund and the Commissioner (Appeals) has not considered the issue on merits. This is seen to be correct and the matter will have to go back before the Commissioner (Appeals) for disposing of the appeal on merits.

4. The appeal is accordingly allowed and the impugned order set aside, the matter being remanded to the Commissioner (Appeals) for disposing of the appeal on merits in accordance with law.