The Assistant Collector has jurisdiction to issue a show cause notice under Section 11a read with Section 11b of the Central Excises and Salt Act, 1944, to recover duty alleged to have been erroneously refunded.

( 1 ) THE question that arises for consideration on this Writ Petition is whether the Assistant Collector of Central Excise viz. , 1st respondent herein has jurisdiction to issue the impugned show cause notice dated 29/09/1992.

( 2 ) THE petitioner-Company manufactures malted milk food products like Horlicks, Boost falling under the Central Excise Tariff Item No. 1901. 19. They have filed price lists for the years 1986-87, 1987- 88, 1988-89, 1989-90 and 19990-91 on 13-9-1987, 19-8-1989, 7-9-1990 and 16-7-1991 respectively.

( 3 ) IN the price lists the petitioner-company has claimed deductions from the prices on account of trade discounts, freight, insurance s, turnover tax octroi sales tax, basic excise duty and special excise duty and distribution expenses. The Assistant Collector by order dated 31-10-1991 finalised the price list and allowed dedications from the prices in respect of all the items except the distribution expenses. On appeal, the Collector confirmed the order of the Assistant Collector by his order dated 14-9-1992.

( 4 ) IN pursuance of the order of the Assistant Collector as confirmed by the Collector, the differential duty paid by the petitioner- Company has been refunded. Accordingly, the petitioner took credit into the Personal Ledger Account an amount of Rs. 3,34,155,73, being the refund of duty paid in excess over the duty actually payable for the period 1986-87 to 1990-91. In other words, the duty paid by including the various items in the prices which were allowed as deductions was refunded.

( 5 ) NOW the Assistant Collector issued the impugned show cause notice on the ground that an amount of Rs. 3,34,155. 73 was erroneously refunded which has been taken as credit in the PLA as the petitioner- company has not passed on the incidence of duty to the customer and proposing to recover the amount credited to the fund created for the purpose of "customers Benefit under sub-section (3) of Section 11 of the Central Excises and Salt Act, 1944.

( 6 ) CHALLENGING the above show cause notice, the present writ petition is filed. The main grievance of the petitioner is that since the refund has already been granted, the Assistant Collector has to jurisdiction to review his order which has become final. It is also contended that the show cause notice is barred by limitation.

( 7 ) FROM a reading of the notice, it appears that it was issued in exercise of the power conferred under Section 11a read with Section 11b of the Central Excises and Salt Act, 1944, on the ground that the refund granted and adjusted in PLA, is erroneous as the petitioner- company has not passed on the incidence of duty to the customers.

( 8 ) SECTION 11a confers jurisdiction on the Central Excise Authorities to recover duty erroneously refunded and under Section 11b (3) of he Act, not-with standing anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of the Act or the rules made thereunder or any other law for he time being in force, no refund shall be made except as provided in sub-section (2) of Section 11b of he Act. Section 11b of the Act provides that when an application for refund of any duty of excise is made, the Assistant Collector of Excise shall satisfy himself that the claimant had no passed on the incidence of duty to any other person. Therefore, there is a duty cast on he Assistant Collector tot satisfy himself that the claimant has not passed on he incidence of duty to any other person, while granting refund of duty to the claimant. From a reading of the show cause notice, it appears that according to the department the refund already made and adjusted in PLA, is erroneous as the petitioner-company has not (?) passed on the incidence of duty to the customer. We are of the view that the Assistant Collector has jurisdiction to issue the show cause notice under Section 11a read with Section 11b of the Act.

( 9 ) IN this con