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2020 ] HONDA SIEL POWER PRODUCTS v. UNION OF INDIA 39

relating to rate of duty or on valuation of excisable goods under any other provi-
sions of this Act, or Rules made thereunder.
29. Section 35 of the Act, provides for appeals to Commissioner (Ap-
peals), wherein any person aggrieved by any decision or order passed under this
Act, may appeal within 60 days from the date of communication. Further, Section
35E which confers power on Committee of Chief Commissioner of Central Excise
to either call for and examine the records of any proceedings in which a Principal
Chief Commissioner of Central Excise or Commissioner of Central Excise as an
Adjudicating authority has passed a decision or order under the Act, and may
direct such Commissioner or any other Commissioner to apply before Appellate
Tribunal for decision. While Section 11B of the Act, provides for claim for refund
of excise duty.
30. As in the present case, provisional assessment was finalised on 24-
7-2015, the assessing authority recorded a finding that CA certificate dated 15-6-
2015 certifies that no part of duty is recovered from the dealers/distributors in-
volved in the discount passed on to the dealers/distributors, which indicates that
assessee had not passed on the incidence of duty paid in proportion to the dis-
count given to dealers/distributors and, therefore, issue of unjust enrichment is a
remote possibility and further, the order observed that duty to the tune of Rs.
17,89,42,303/- was passed on to the customers and duty deposited to the tune of
Rs. 1,03,75,633/- was in excess. Further, an application being made by petitioner
was adjudicated by Assistant Commissioner on 5-11-2015 wherein it was held
that it was not a case of unjust enrichment and petitioner was entitled for refund.
This order was also not challenged by revenue and the same attained finality.
31. Thus, question for consideration before us is, as to whether the rev-
enue can initiate proceedings under Section 11A for recovery of excise duty, once
adjudication had been made by department making final provisional assessment
and, thereafter, adjudicating application for refund under Section 11B, and no
appeal being filed challenging the said adjudication which having attained finali-
ty, is barred on the ground of change of opinion or would amount to reassess-
ment when once the revenue did not take recourse to appeal in higher forum.
32. As it is not in dispute that after provisional assessment order, the
adjudicating authority passed an order for refund under Section 11B of the Act.
Both the orders which were appealable and revisable under Section 35 and 35E
were never taken to the higher forum by revenue and they attained finality. It
was only after decision of the Apex Court in case of Addison and Company (supra)
that show cause notice was issued on 17-8-2017, and order was passed on 30-11-
2017 directing the petitioner for refund of excise duty to be deposited in Con-
sumer Welfare Fund.
33. A careful reading of Sections 11A, 11B, 35 and 35E would reveal
that an application for refund as envisaged under Section 11B is not to be dealt as
a ministerial Act, or an administrative Act, rather an application has to be made
by person claiming refund within a prescribed time and the application is to be
accompanied by documents referred to in Sub-section (1) of Section 11B to estab-
lish that amount of duty of excise and interest, if any paid on such duty in rela-
tion to which such refund is claimed was collected from, or paid by him and the
incidence of such duty and interest, if any, paid on such duty has not been
passed on by him to any other person. It is on the receipt of this application, As-
sistant Commissioner or Deputy Commissioner of Central Excise, if satisfied may
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