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40 EXCISE LAW TIMES [ Vol. 372

make an order for refund. Thus, it is only after the adjudication of the application
that an order of refund of duty and interest is passed.
34. Sub-section (3) of Section 11B which is a non-obstante clause makes
it clear that dehors any judgment, decree, order or direction of appellate Tribunal
or Court or any other provision of the Act, no refund shall be made except as
provided in Sub-section (2). Thus, the procedure prescribed under Section 11B
not only regulates the manner and form in which an application for refund is to
be made but also prescribes period of limitation as well as method of adjudica-
tion in which refund has to be made.
35. Thus, Section 11B assumes great significance, as any order of refund
of excise duty and interest is made only after the adjudication as envisaged un-
der scheme of Section 11B. In the present case, petitioner-company had made an
application for refund which was adjudicated on 5-11-2015 and it was directed to
refund excise duty to tune of Rs. 1,02,75,633/- which was in excess. This order
was never challenged by revenue in appeal and it attained finality.
36. Thus, once the order of adjudication has been validly passed under
Section 11B and a refund has been made on 5-11-2015, the next question which
crops up for consideration is as to whether Section 11A can be invoked thereaf-
ter.
37. As Section 11A(1)(a) uses the word “Central Excise Officer” who is
empowered for recovery of any refund, Central Excise Officer is defined in Sec-
tion 2(b) of the Act, to mean Chief Commissioner of Central Excise, Commission-
er of Central Excise, Commissioner of Central Excise (Appeals), Additional
Commissioner of Central Excise, Joint Commissioner of Central Excise, Assistant
Commissioner of Central Excise or Deputy Commissioner of Central Excise or
any other officer of Central Excise Department invested by Central Board of Ex-
cise and Customs constituted under Central Board of Revenue Act, 1963 with
any of powers of a Central Excise Officer under the Act. Thus, an order of recov-
ery can be passed under Section 11A by an Assistant Commissioner, as he hap-
pens to be a Central Excise Officer in terms of Clause (a) of sub-section (1) of Sec-
tion 11A, though an application under sub-section (2) of Section 11B can be made
and an order for refund can either be passed by Assistant Commissioner or by
Deputy Commissioner. Meaning thereby that a Deputy Commissioner can pass
an order for refund under Section 11B(2) and an Assistant Commissioner can
invoke proceedings for recovery under Section 11A(1).
38. This could lead to a situation where power of recovery under Sec-
tion 11A is invoked by a subordinate authority despite the fact that refund appli-
cation has been adjudicated upon by a superior authority under Section 11B.
39. Through plain reading of Section 35E, it is clear that limited revi-
sional jurisdiction is conferred upon Principal Commissioner and Commissioner
of Excise in sub-section (2) of Section 35E, this power is not actually to correct
any error directly, but only available for directing the competent authority to
take matter to the Commissioner (Appeals). Meaning thereby that it is always
open to Principal Commissioner or Commissioner or Central Excise to examine
the order passed by adjudicating authority under Section 11B and direct the
competent authority to file appeal against order of refund. In the present case,
order of refund was never taken to higher forum and it became final.
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