Recovery based on erroneous refund unsustainable as adjudication taken place u/s. 11B of Central Excise Act

CNH Industrial (India) Pvt. Ltd. Vs Commissioner of Central Excise (CESTAT Mumbai)

Recovery based on erroneous refund unsustainable as adjudication taken place u/s. 11B of the Central Excise Act

CESTAT Mumbai held that once the adjudication has taken place under section 11B of the Central Excise Act there cannot be recovery on claim of ‘erroneous refund’ under section 11A of the Central Excise Act.

Facts- The main allegation on the appellant is that they have aided and abetted the Appellant 1 by willfully furnishing fraudulent documents so as to enable them file the refund claim. Further, it is also alleged 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.

Conclusion- 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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