ORDER :

M.K. Sharma, Anil R. Dave, JJ.

By this judgment and order, we propose to dispose of this appeal, which is filed by the Appellant being aggrieved by the judgment and order dated 18-2-2003 [2003 (153) E.L.T. 694 (Tri. - LB)] passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal') affirming the order dated 3-12-2001 passed by the Commissioner (Appeals) and the order of the Assistant Commissioner, who had passed the order in original.

2. Counsel appearing for the Appellant has submitted before us that the Respondent could not have issued a show cause notice to the Appellant demanding recovery of the amount which was paid to the Appellant by the Respondent as refund of the duty paid bypassing the statutory provision. The next contention which is raised before us is that the Appellant had issued a credit note which was filed and, therefore, the refund which was given to the Appellant by the Department should have been upheld by all the authorities.

3. The aforesaid submissions of the counsel appearing for the Appellant were, however, refuted by the counsel appearing for the Respondent, who has drawn our attention to the documents on record including the various orders passed by the authorities below as also the Tribunal. By relying on the provisions of Sections 11A, 11B and 12, he has submitted before us that the orders passed by all the authorities including the Tribunal are just and proper.

4. In the light of the aforesaid submissions made by the counsel appearing for the parties, the issue that arises for our consideration is whether the Appellant can be said to be eligible for refund of the duty claimed by it in terms of Section 11B of the Central Excise and Salt Act, 1944.

5. The Appellant herein deposited duty on clearance of Sodium Hypochlorite (Bleach Liquor) for the period from 1-3-1988 to 15-6-1989 vide TR-6 dated 19-7-1989. Subsequent thereto, on 28-11-1990 a refund claim was filed by the Appellant. The aforesaid claim was allowed by the Assistant Commissioner by a letter dated 22-9-1992 by the following order:

"Please find enclosed herewith a cheque No. A16835269 dated 22-9-92 for Rs. 2,00,305/- (Rupees Two Lacs three Hundred and five) only in finalisation of your Refund claim. That the payment will be received within three months from the date of issue of cheque drawn on Central Bank of India, Branch Ratlam.

Please send acknowledgment receipt for the cheque"

6. Since according to the Respondent, the said claim was wrongly sanctioned by the Assistant Commissioner, a show cause notice dated 15-3-1993 was issued stating therein that the refund given to the Appellant by the Assistant Commissioner was without jurisdiction as refund is admissible only when incidence of central excise duty was not passed on to other persons. In the said show cause notice, a reference was also made that buyer in the case was M/s. Grasim Industries Ltd., Staple Fiber Division, Nagda and, therefore, central excise duty was initially passed on to Staple Fiber Division. It was also stated that a credit note was issued on 7-8-1991 for Rs. 2,00,305/- and since the same was claimed at a much later stage, it would not establish that the initial central excise duty incidence was not passed on.

7. After reply to the show cause notice was filed, the matter was considered by the Assistant Commissioner, who passed the order in original holding that the refund order was passed illegally and without jurisdiction. In view of the aforesaid findings, it was ordered that the amount of Rs. 2,00,305/- which was erroneously refunded be recovered from the Appellant in terms of Section 11A of Central Excise and Salt Act, 1944.

8. The aforesaid order was challenged by filing an appeal before the Commissioner (Appeals), who upheld the order of the Assistant Commissioner and the said order when challenged before the Tribunal was heard at length. The Tribunal by order dated 18-2-2003, dismissed the appeal and