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TMI Blog1987 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts .and circumstances of the case, the decision in the case of Bawa Potteries v. U.O.I, is at all applicable, in view of the subsequent incorporation of the specific statutory provision namely Section 35E(2) of the Excise Act which provides that an original order of the Assistant Collector such as is passed in the present case can only be reviewed by the Collector (Appeals) as mentioned in Section 35E. (2) Whether in the facts and circumstances of the case, the claim for recovery of credit wrongly taken could only have been made under Rule 56A of the Excise Rules. (3) Whether in the facts and circumstances of the case, Section 11A of the Excise Act is at all applicable when there is a specific provision for recovery of credit wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court. 3. Heard Shri Vadivelu, the learned Departmental Representative, who submitted that the wrong availment of proforma credit is only a case of short levy which has to be recovered only with reference to the provisions of Section 11A of the Act. In this case further there was a formal order granting refund to the applicant and such refund being found to be erroneous was sought to be recovered in terms of Section 11A which is correct in law. The learned Departmental Representative further urged that the question now framed that Section 11A cannot be invoked and only remedy was by invoking the review powers of the Collector under Section 35E in that form had not at all been argued before the Tribunal and hence this question does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petro Chem. 1987 (31) E.L.T. 743 had followed the two decisions of the High Courts referred to above as well as the Special Bench decision and came to the same conclusion. The law being now well settled as above by the pronouncement of the High Courts, there is no substance in the points now sought to be raised as points of law. As regards the point that in view of the subsequent incorporation of the review provision specifically under Section 35E(2) of the Central Excises and Salt Act, 1944, the Delhi High Court decision in the case of Bawa Potteries is not of relevance cannot be accepted firstly for the reason that the Delhi High Court while considering the scope of Rule 10 as it then existed observed that : The language of the rule cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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