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36 EXCISE LAW TIMES [ Vol. 372

as well as the order dated 30-11-2017 are not in nature of reassessment as they do
not affect or change the quantum of excise duty assessed and refunded to peti-
tioner, but has been issued only for transfer/credit to the Consumer Welfare
Fund after recovering the same from petitioner to whom it has been erroneously
refunded.
27. We have heard counsel for the parties and perused the material on
record. Before proceeding to decide the issue in hand, it would be necessary to
have a cursory glance at relevant provisions of Central Excise Act, 1944. Relevant
portion of Sections 11A and Sections 11B, 12B, 35E and 35 are extracted
hereasunder :-
“Section 11 A. Recovery of duties not levied or not paid or short-levied or
short-paid or erroneously refunded. -
(1) Where any duty of excise has not been levied or paid or has been
short-levied or short-paid or erroneously refunded, for any reason, other
than the reason of fraud or collusion or any wilful misstatement or sup-
pression of facts or contravention of any of the provisions of this Act, or of
the rules made thereunder with intent to evade payment of duty,
(a) the Central Excise Officer shall, within [two years] from the
relevant date, serve notice on the person chargeable with the
duty which has not been so levied or paid or which has been
so short-levied or short-paid or to whom the refund has erro-
neously been made, requiring him to show cause why he
should not pay the amount specified in the notice;
(b) the person chargeable with duty may, before service of notice
under clause (a), pay on the basis of,
(i) his own ascertainment of such duty; or
(ii) the duty ascertained by the Central Excise Officer, the
amount of duty along with interest payable thereon un-
der section 11AA.
………
Explanation 1. - For the purposes of this section and section 11AC,-
(a) “refund” includes rebate of duty of excise on excisable goods
exported out of India or on excisable materials used in the
manufacture of goods which are exported out of India;
(b) “relevant date” means,-
(i) in the case of excisable goods on which duty of excise has
not been levied or paid or has been short-levied or short-
paid, and no periodical return as required by the provi-
sions of this Act has been filed, the last date on which
such return is required to be filed under this Act, and the
rules made thereunder;
(ii) in the case of excisable goods on which duty of excise has
not been levied or paid or has been short-levied or short-
paid and the return has been filed, the date on which
such return has been filed;
(iii) in any other case, the date on which duty of excise is re-
quired to be paid under this Act, or the rules made
thereunder;

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