- (1.) IN this application filed under Section 35 -H(1) of the Central Excise Act, 1944, the following question of law has been formulated by the Revenue (Commissioner of Central Excise) on the prayer for direction upon the Appellate Tribunal to refer to the High Court the said question of law for hearing and decision : "Whether statutory remedies under Section 11 -A(1) only will have to be exercised and statutory remedies available under Section 35 -E(2) are not be exercised in the case of refunds granted by passing an order under Section 33 of CEA44 when such orders are not as per statutory conditions and restrictions making such refund erroneous -
(2.) WE have heard the learned counsel for the parties. The Tribunal in the judgment under challenge in this petition has made the following observations : "We have considered the above decisions relied upon by the learned Consultant. The ratio of all the decisions has been that in the absence of any show cause notice under Section 11 -A for recovery of the erroneous refund within a time -limit prescribed therein, such recovery is hit by limitation, notwithstanding the order passed by the Commissioner (Appeals) under Section 35 -F. As admittedly, no show cause notice has been issued within a period of six months from the date of refund, we hold that the impugned Order of the Commissioner (Appeals) is not legal." This observation actually is based on the contentions of the appellants before the Tribunal (who is the sole respondent before us). The contention has been recorded in para 3 of the Tribunals judgment. It reads thus : The appellants have raised number of pleas before us. It has been contended on behalf of the appellants that the show cause notices are required to be issued under Section 11 -A within a period of six months from the date of refund for recovery of the alleged erroneous refund and filing of an appeal under Section 35 -E is not sufficient for recovery of the erroneous refund."
(3.) IN our considered view, the question of law as formulated, indeed is very important because prima facie, it appears to us that perhaps the Tribunal was not correct in its interpretation of Section 35 -E of the Central Excise Act, when it observed and held that in the absence of any show cause under Section 11 -A for recovery of the erroneous refund within the limitation period prescribed therein, such recovery was hit by limitation and, therefore, the order passed in terms of Section 35 -E was illegal. In other words, the Tribunal observed that Section 35E of the Act, particularly, Sub -sections (2) and (4) thereof were to be read subject to Section 11 -A of the Act. We are of the prima facie opinion that both these provisions of law are totally independent of each other and one has nothing to do with the other. Section 35 -E of the Act is an independent machinery providing for the exercise of the revisional jurisdiction by Collector Central Excise (Sub -section (2)) and the direction issued by the collector for filing an application before the Commissioner (Appeals) in terms of Sub -section (4).;