2.During the course of search operations carried out by the officers of Central Excise (Prev.), Ahmedabad-II at their factory premises, it was revealed that the said assessee had illicitly cleared certain goods without entering them in their records and without including the same in their clearance value during the year 2004-05 and 2005-06 their factory.
3.A Show Cause Notice was issued by the Asstt. Commissioner, Central Excise, Division-III, Ahmedabad-II demanding duty of Rs. 3, 08,485/- along with consequential interest and penalty under Section 11AB & 11AC of the Central Excise Act, 1944.
4.The above Show Cause Notice was adjudicated by the Assistant Commissioner, Central Excise, Division-III, Ahmedabad-II vide OIO No. MP/78/Offence/07-08 dated 31.03.2008 confirming the above demand, interest and penalty equal to the duty amount. A penalty of Rs. 10,000/- was imposed on Shri Prakashbhai M. Shah, Partner of M/s. Technocraft Enterprises. The assessee had already paid the duty amount willingly vide TR-6 Challan No. 12 dated 31.07.2006.
5.Being aggrieved by the impugned order, the said assessee had filed appeal along with stay application before the Commissioner (Appeals-I), C. Ex., Ahmedabad. The stay application was disposed off vide stay order No. 37(Ahd-II)/2008 dated 09.07.2008 wherein under Provision of 35F of the CEA, 1944, the said assessee was directed to pre-deposit 100% of the penalty imposed under the impugned OIO. The assessee complied with the direction of Stay order and pre-deposited penalty amount of Rs. 3,08,485/- vide TR 6 Challan dated 29.07.2008. The Commissioner (Appeals-I), Central Excise, Ahmedabad vide his OIA No. 154/2008(Ahd-II) CE/ID/Commr. (A)/Ahd dated 16.12.2008 upheld the Order in Original No. MP/78/Offence/07-08 dated 31.03.2008 and rejected the appeal filed by the said assessee.
6.Being aggrieved by the OIA, the said assessee filed an appeal before Honble CESTAT, Ahmedabad. The appeal was disposed off by the Honble CESTAT, Ahmedabad vide Order No. A/34-35/WZB/AHD/10 dated 30.12.2009 to the extent that the penalty imposed on the appellant and paid by them is required to be reduced to 25% of the duty. Accordingly the impugned order was modified and penalties reduced to 25% of duty demand. Hence, the assessee applied for the refund of amount of excess penalty pre-deposited by them vide TR 6 Challan dated 29.07.2008 which was sanctioned vide OIO No. MP/36/Refund/10-11 dtd. 01.04.2010.
7.Meanwhile being aggrieved with the CESTAT Order, Department filed an appeal before Honble High Court of Gujarat on 22.03.2010, and hence the refund claims of Rs. 2,31,364/- erroneously granted to the assessee vide OIO No MP/36/Refund/10-11 dtd. 01.04.2010 by this office was required to be recovered under Section 11A of the Central Excise Act, 1944 along with applicable rate of interest.
8.Therefore, M/s. Technocraft Enterprises, were called upon to show cause to the Deputy Commissioner of Central Excise, Division-III, Ahmedabad-II as to why the refund claim of Rs. 2,31,364/- granted erroneously vide OIO No. MP/36/Refund/10-11 dated 01.04.2010 should not be recovered from them under Section 11A (1) of the Central Excise Act, 1944 along with applicable rate of interest.
Defense Reply and personal hearing:
9.The assessee vide their written submission dtd. 16.02.2012 have drawn attention to the High Court Order dated 12.01.2011 and have stated that as the Departments tax appeal has been dismissed by the Honble High Court of Gujarat, the show cause notice may be quashed. Personal Hearing:
10.Personal Hearing was held on 16.02.2012. On behalf of the assessee, Shri Jay Kataria, working as an accountant with the said firm appeared for the hearing and re-iterated the submission made in their written reply dated 16.02.2012. He had nothing more to add.
11.I have carefully gone through the records of the case and the defense reply submitted during the Personal Hearing of the case. I find that the controversy involved in the present case stands concluded against revenue by the decision of the Honble High Court vide Order dated 12.01.2011 in the Tax Appeal No. 736/2010. In the circumstances, there is no need to go into details; I find that the show cause notice is not sustainable.