JUDGMENT Ranjan Gogoi, J. 1. This Appeal under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the Act) is directed against the judgment and order dated 18.06.2004 passed by the Customs, Excise and Services Tax Appellate Tribunal, Eastern Zone Bench, Kolkata. By the aforesaid order the learned Tribunal has interfered with the notice issued to the Respondent Company under Section 11A of the Act for recovery of an amount of Rs. 16,09,687/- being Central Excise Duty erroneously refunded to the Respondent Company by the Appellant. The learned Tribunal by the aforesaid order also held that the appropriate course of action for the Revenue would have been to challenges the order of refund passed by the Assistant Commissioner under the provisions of Section 35E(2) of the Act. 2. The facts are short and may be summarized in a nutshell: On a claim made by the Respondent Company that its manufacturing unit located in the Cachar District of the State of Assam had undergone expansion by more than 25% of its installed capacity after 24.12.1997, exemption from payment of excise duty in terms of the Notification No. 33/99-CE dated 08.07.1999 was sought by the Respondent Company. Exemption in terms of the aforesaid notification was to be granted in the form of refund of duty to eligible units. Accordingly, the Assistant Commissioner by order dated 30.04.2002 granted provisional refund of Central Excise Duty paid by the Respondent Company for the period October 2000 to March 2002 amounting to Rs. 16,09,687/-. Thereafter, a show cause notice under Section 11A of the Act dated 06.08.2002 was issued by the Commissioner of Central Excise, Shillong seeking recovery of the refund paid on the ground that such refund was claimed and erroneously granted on the basis of certain fabricated documents. The Commissioner of Central Excise confirmed the demand under notice dated 06.08.2002 issued under Section 11A of the Act and also directed the Respondent Company to pay interest on the amount due under Section 11AB of the Act. No penalty was, however, imposed. Aggrieved, the Respondent Company challenged the aforesaid order of the learned Commissioner before the Tribunal. The learned Tribunal took the view that the correct course of action for the Revenue would have been to avail of the remedies provided by Section 35E(2) of the Act, which, however, was not done within the period of time prescribed by the Act. Aggrieved, the Respondent Company challenged the aforesaid order of the learned Commissioner before the Tribunal. The learned Tribunal took the view that the correct course of action for the Revenue would have been to avail of the remedies provided by Section 35E(2) of the Act, which, however, was not done within the period of time prescribed by the Act. The learned Tribunal also took the view that as the refund of duty paid to the Respondent Company was provisional, the notice under Section 11A of the Act could not have been issued. In this regard reliance was placed by the learned Tribunal on a decision of the Madras High Court reported in 1994 (73) ELT 272 Ponds (India) Ltd. v. Assistant Collector of Taxes, Madras. 3. We have heard Sri D.C. Chakraborty, learned CGC appearing for the Appellant and Sri N. Choudhury, learned counsel for the Respondent Company. 4. Sri Chakraborty, learned CGC has placed before the Court a decision of the Apex Court in the case of Collector of Central Excise, Bhubaneshwar v. Re-Rolling Mills 1997 (94) ELT 8 (SC) to contend that in the aforesaid decision the Apex Court took the view that a notice under Section 11A of the Central Excise Act can be issued without resorting to the revisional powers under Section 35Eof the Act. The aforesaid decision of the Apex Court was based on another decision in the case of Union of India and Ors. v. Jain Shudh Vanaspati Ltd. and Anr. reported in 1996 (86) ELT 460 (SC), wherein the Apex Court while considering the pan materia provisions of the Customs Act, 1962 had taken the view that notice under Sections 28of the Customs Act could have been issued without exhausting the revisional powers under Section130 of the Customs Act. The decision of the Apex Court in Jain Shudh Vanaspati Ltd. (supra) has also been placed before the Court by Sri Chakraborty. 5. Sri N. Choudhury, learned counsel for the Respondent Company has placed before the Court the provision contained in Section 11A(3)(b) of the Act to contend that where duty is provisionally assessed, it is the date of adjustment of duty after the final assessment that would be relevant date for the purpose of Section 11A of the Act. 5. Sri N. Choudhury, learned counsel for the Respondent Company has placed before the Court the provision contained in Section 11A(3)(b) of the Act to contend that where duty is provisionally assessed, it is the date of adjustment of duty after the final assessment that would be relevant date for the purpose of Section 11A of the Act. Sri Choudhury has, therefore, argued that until the assessment is made final, the question of issuing any notice under Section 11A of the Act will not arise. In this regard Sri Choudhury has drawn the attention of the Court to the decision of the Madras High Court in Ponds (India) Ltd. (supra). 6. We have given our anxious consideration to the rival submissions made on behalf of the contesting parties. In Jain Shudh Vanaspati Ltd. (supra), the Apex Court while considering a similar question in the context of the provisions of the Customs Act, 1962 took the view that where short paid duty has been occasioned by fraud, the original order need not be revised under Section 130 of the Act and notice under Section 28 for recovery of such short paid duty would be valid. In this regard the observation of the Apex Court contained in paragraph 9 of the judgment to the effect that A clearance order under Section 47 obtained by fraudulent means such as this (if it, in fact, be so) cannot debar the issuance of a show-cause notice for confiscation of goods under Section 124. Fraud, if established, unravels all, an order under Section 47 obtained by the employment of fraudulent methods does not have to be set aside by the exercise of revisional powers under Section 130 before the ill effect of the fraud can be set right by initiation of the process of confiscation of the fraudulently cleared goods under Section124, will have to be specifically noticed by us. The ratio of the aforesaid decision rendered in the context of the provisions of the Customs Act was made applicable to the provisions of the Central Excise Act in the Collector of Central Excise, Bhubaneshwar (supra). In the present case it is evident from the notice dated 06.08.2002 issued under Section 11A of the Act that the said notice had been issued on the ground that refund of Rs. 16,09,687/- was availed of by the Respondent Company on the basis of fabricated documents. 7. In the present case it is evident from the notice dated 06.08.2002 issued under Section 11A of the Act that the said notice had been issued on the ground that refund of Rs. 16,09,687/- was availed of by the Respondent Company on the basis of fabricated documents. 7. We have read the decision of the Madras High Court in Ponds (India) Ltd. (supra) relied upon by Shri Choudhury, learned counsel for the Respondent Company. We have also considered the provision of Section 11A(3)(b) and (c) of the Act. 8. In Ponds (India) Ltd. (supra), the assessment was not finalized at the stage when the notice under Section 11A of the Act was issued and such non-finalization was on account of the fact that the price list submitted by the assessee was yet to be finally approved by the authorities. It is in such circumstances that a provisional assessment of the duty liability of the assessee was made. In the present case the assessment of the Respondent Company for all practical purposes was complete and the duty liability was determined and paid by the Respondent. Thereafter, in terms of the Notification No. 33/99 - CE dated 08.07.1999, the duty paid was refunded as a measure of exemption from duty but such refund was provisional. The facts of the present case are altogether different from those involved in Ponds (India) Ltd. (supra). That apart, we have also noticed the provisions contained in Section 11A(3)(c) of the Act, which clearly indicate that the relevant date for the purpose of Section 11A of the Act in case of refund of duty would be the date of such refund. 9. In view of the above, the contentions advanced on behalf of the Respondent Company that the notice under Section 11A of the Act was invalid as the assessment of duty was not made final cannot have our acceptance. 10. Also, in view of the decision of the Apex Court in Jatin Shudh Vanaspati Ltd. (supra) as made applicable to the provisions contained in the Central Excise Act by the order of the Apex Court in Collector of Central Excise, Bhubaneshwar (supra), the view taken by the learned Tribunal that the Appellant should have exhausted the remedies under Section 35E of the Act cannot have our approval. The interference made with the notice under Section 11A of the Act on the ratio of the law laid down in Ponds (India) Ltd. (supra) also, in our considered view, was misplaced. 11. We, accordingly, deem it appropriate to allow the Appeal, set aside the judgment and order dated 18.06.2004 passed by the Customs, Excise and Services Tax Appellate Tribunal, Eastern Zone Bench, Kolkata and direct re-commencement of the proceeding against the Respondent Company under Section 11A of the Act.