CEREF 2/2005 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON’BLE MR. JUSTICE A.K.GOSWAMI This appeal has been filed by the Revenue under Section 35-G of the Central Exci se Act, 1944 (for short the Act). According to the Revenue, a substantial questi on of law arises out of the order dated 18.6.2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, East Zone Bench, Calcutta (for short CESTAT) i n Appeal No.EDM-472/2003. 2. Broadly, the assessee had set up a unit for the purposes of manufacturin g tea. In terms of Notification No.33/99-CE dated 8.7.1999 exemption from duty w as granted to units set up in the North East after 24.12.1997 and also to existi ng units making an expansion of 25% or more of the installed capacity. According to the assessee, it had increased its installed capacity by more than 25% and t herefore, claimed the benefit of Notification No.33/99-CE dated 8.7.1999. 3. The entitlement of the benefit to the assessee came to be considered by the Assistant Commissioner of Central Excise, Silchar. By his order dated 29.4. 2002 it was held that the assessee is eligible for the exemption under Notificat ion No.33/99-CE dated 8.7.1999. It was also held that the assessee had completed the expansion work on 30.9.2000 and therefore, the benefit would be available t o the assessee only with effect from 1.10.2000. This order has since attained fi nality inasmuch as it has not been challenged by the Revenue. 4. Based on the aforesaid order dated 29.4.2002, a consequential provisiona l sanction order was issued in favour of the assessee on 30.4.2002 for an amount of ‘16,09,585/- as admissible refund for the period under consideration. We are told by learned counsel for the assessee that the amount has since been receive d by his client. 5. The Revenue thereafter issued a notice under Section 11A of the Act on 6 .8.2002 seeking recovery of an amount of ‘16,09,687/-. It was alleged in the not ice that the assessee had played some kind of a fraud for obtaining the refund. At this stage, it may be only be stated that the Revenue did not invoke the exte nded period of limitation under the proviso to Section 11A of the Act. 6. The assessee replied to the show cause notice and an order was passed by the Commissioner of Central Excise, Shillong on 30.9.2003 confirming the demand of ‘16,09,687/- made under Section 11A of the Act since that amount had erroneo usly been refunded to the assessee. It was also ordered that interest on the amo unt should be paid by the assessee. 7. Feeling aggrieved, the assessee preferred an appeal before the CESTAT wh ich passed an order dated 18.6.2004 which is under consideration in this appeal. The CESTAT came to the conclusion that the appropriate course of action for the Revenue would have been to challenge the initial order dated 29.4.2002 passed b y the Assistant Commissioner of Central Excise, Silchar whereby the assessee was given the benefit of Notification No.33/99-CE dated 8.7.1999. It was held that the Commissioner of Central Excise could not exercise his power under Section 11 A of the Act to re-open a proceeding that had already terminated and was not ear lier challenged by the Revenue. 8. The CESTAT eventually held that since the Revenue had failed to challeng e the order passed by the Assistant Commissioner, Silchar by invoking the revisi onal power conferred by Section 35E (2) of the Act, the order dated 29.4.2002 ha d attained finality. Following the decision of the Madras High Court in Ponds (I ndia) Ltd. v. Assistant Collector of Excise, Madras, 1994(73) ELT 272 (Mad.) it was held that resort to Section 11A of the Act was not permissible. As mentioned above, the Revenue was dissatisfied with this order of the CESTAT and has sough t to raise a substantial question of law before us. 9. On 20.4.2009, a Division Bench of this Court took the view that the appe al filed by the Revenue ought to be allowed and the judgment and order dated 18. 6.2004 passed by the CESTAT was liable to be set aside. The Division Bench also directed re-commencement of the proceedings against the assessee under Section 1 1A of the Act. 10. Against the order passed by the Division Bench on 20.4.2009, the assesse e approached the Supreme Court by way of SLP (C) No.19974/2009 (CA No.2816/2010) . By an order dated 26.3.2010, the Supreme Court set aside the order passed by t he Division Bench of this Court and remitted the case for framing a proper quest ion of law, if any, and answering the same in accordance with law. It is under t hese circumstances that the matter has now been placed before us. 11. We have heard learned counsel for the parties and find that no question of law, much less a substantial question of law, arises in this appeal. 12. The material portion of Section 11A of the Act reads as follows: 11-A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.-(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short-payment or erro neous refund, as the case may be, was on the basis of any approval, acceptance o r assessment relating to the rate of duty on or valuation of excisable goods und er any other provisions of this Act or the rules made thereunder a Central Excis e Officer may, within one year from the relevant date, serve notice on the perso n chargeable with the duty which has not been levied or paid or which has been s hort-levied or short-paid or to whom the refund has erroneously been made, requi ring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been s hort-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of t he provisions of this Act or of the rules made thereunder with intent to evade p ayment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words one year, the words five years were su bstituted: (Emphasis supplied). A bare reading of Section 11A of the Act indicates that power can be exercised o nly if duty has not been levied or paid or has been short-levied etc. on the ba sis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act . Insofar a s the present case is concerned, the only issue that arose for consideration was whether the assessee was entitled to the benefit of Notification No.33/99-CE da ted 8.7.99. There was no issue of any approval, acceptance or assessment relatin g to the rate of duty nor was there any issue relating to the valuation of any e xcisable goods. Ex-facie, therefore, Section 11A of the Act was inapplicable to the facts of the case. 13. That apart, the Assistant Commissioner of Central Excise, Silchar had pa ssed a final order in favour of the assessee on 29.4.2002 and admittedly, this o rder was revisable under Section 35-E of the Act. For reasons best known to the Commissioner of Central Excise, Shillong no action was taken to have the order o f the Assistant Commissioner revised or set aside. Having failed to avail of the statutory remedy available under the Act, the Revenue sought to circumvent the law (as it were) by taking recourse to Section 11A of the Act. In our opinion, t his was clearly impermissible inasmuch as what is required to be done in a manne r prescribed by law, ought to be done in that manner only or not at all. 14. Insofar as the present case is concerned, the prescription of law requir ed that the order of the Assistant Commissioner passed on 29.4.2002 could be cha llenged only by resorting to Section 35-E of the Act. The Revenue could not init iate collateral proceedings to set aside the order dated 30.4.2002 by resorting to the enabling power under Section 11A of the Act. 15. Consequently, we are of the opinion that: (i) Section 11A of the Act is not applicable to the facts of the case since the issue raised did not concern a ny approval, acceptance or assessment relating to the rate of duty on or valuati on of any excisable goods. The issue raised by the assessee related to its entit lement to the benefit of Notification No.33/99-CE dated 8.7.99. (ii) Even otherw ise, the Revenue could not take recourse to Section 11A of the Act when it had a statutory remedy available to it to challenge the order dated 29.4.2002 passed by the Assistant Commissioner of Central Excise, Silchar by resorting to the rev isional power available under Section 35-E of the Act. 16. It is for the above reasons that we are of the opinion that no question of law much less a substantial question of law arises for consideration in this appeal. 17. The appeal is dismissed. No costs.