Page 155 - ELT_1_1st April 2020_Vol 372_Part

2020 ] HONDA SIEL POWER PRODUCTS v. UNION OF INDIA 41

40. Decisions relied upon by the counsel for the revenue in case of Jain
Shudh Vanaspati (supra) relates to proceedings which were vitiated by fraud. Fur-
ther, the Apex Court recorded a clear finding that goods were cleared for home
consumption under Section 47 of the Act, by playing fraud upon the Department.
Therefore, the Court held that fraud vitiates all solemn Acts, while in present
case department has not alleged any fraud upon the petitioner-assessee.
41. Further reliance placed by counsel for revenue on the decision of
Addison and Company (supra), wherein it was held that recovery under Section
11A can be made where excise duty was refunded erroneously, but the Apex
Court had also held that where the incidence of duty was not passed on and the
assessee had borne burden of duty, thus he was entitled for the refund. Thus,
both the cases relied upon by the department are not applicable in the present
case, as it is neither a case of fraud, nor where incidence of duty was passed on.
42. Secondly, the argument of alternative remedy under Section 35 is
concerned, the said fact is of no rescue to the department as specific case of peti-
tioner is that show cause notice dated 17-8-2017 was issued after more than two
years from finalisation of assessment order dated 24-7-2015, and where there is
change of opinion by issuance of show cause notice, writ petition is maintainable
as held in Shahnaaz Ayurvedics (supra), Simplex Concrete Piles (supra) and Samsung
India Electronics Pvt. Ltd. (supra).
43. As seen above that Section 35E and 11A operate in different fields
and are invoked for different purposes, we are merely concerned in this case
with the interplay between Sections 11A and 35E. We are also concerned with
what happened in the form of an adjudication under Section 11B. What happens
in a case wherein adjudication takes place under Section 11B and authorities do
not take recourse available to them, whether after having allowed adjudication
under Section 11B to attain finality, was there any remedy available to depart-
ment at all under Section 11A to proceed.
44. This question was considered and decided in Eveready Industries
(supra), wherein the Court held that two valuable rights, one in the form of right
of appeal and another in form of order of refund, are now sought to be taken
away indirectly by taking recourse to Section 11A. What cannot be done directly
cannot be done indirectly also.
45. Thus, the department, once the adjudication has taken place under
Section 11B 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 11A.
46. In view of the above, we are of the considered opinion that the issu-
ance of show cause notice dated 17-8-2017 and, thereafter, order dated 30-11-2017
passed by respondent authority for repayment of refund pursuant to orders un-
der Section 11B are unsustainable and are hereby quashed.
47. The writ petition stands allowed.

_______

EXCISE LAW TIMES  1st April 2020  203