9911796707
TMI Blog1991 (4) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... JDR, Shri M.S. Arora for the respondent herein (appellant in the appeal). 2. Shri Arora pointed out that the so-called mistakes pointed out in the subject ROM were in the nature of various judgments relied upon by the applicant/respondents during the course of arguments on the appeal filed by the department. It is a well settled position, as submitted by him, that all arguments raised but not considered, stand rejected, as has been held by Delhi High Court in Rohtak and Hissar District Electric Supply Co. (P) Ltd. v. Commissioner of Income-Tax, Delhi-1 [(1981) 128 ITR 52]. It should, therefore, be presumed on the basis of the said authority, submitted the learned DR, that the reliance placed by the applicant s Counsel, Shri P.R. Dastider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the issues raised when the same authority is examining the question whether the issues raised were or were not considered and decided . It would be a question of fact to be recorded by the authority concerned itself to say whether these were considered or not. We are, therefore, of the view that in a ROM application arising out of Tribunal s order, observations of the Delhi High Court in 128 ITR 52 would not strictly apply 3.2 We, therefore, consider it necessary to examine the so-called manifest errors pointed out by the appellants in the subject application. These are dealt with seriatim below :- A. The applicants have stated that Tribunal s judgment in the case of Vijay Laxmi Bottler - Order No. E/746 747/90-D, dated 22-11- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Be that as it may there is no force in the submission made in para A of the ROM application. The position appears to be well settled and is fortified by the recent judgment of thSupreme Court in the case of PEFCO Foundry Chemicals Ltd. v. CCE [1992 (58) E.L.T. 565]. In para 9 of the said Report the Supreme Court observes that - Once the Tribunal found that cyclinder liner ceased to be cast iron it is obvious that the department could not be precluded from levying duty on it subject to the law of limitation. [Emphasis supplied]. What applies to Section 11A in view of Supreme Court s observation, would apply with equal force to Section 11B. An assessee, therefore, is not estopped from claiming refund on an approved price list at highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any final order of assessment and thus Mr. Saraf s contention must be accepted inasmuch as the petitioner s claim for refund has been duly made within the special period of limitation. It is thus clear that the law laid down by Calcutta High Court in K.L. Thiarani s case, mentioned supra, is not what the applicants made it out to be. Calcutta High Court has stated and we respectfully agree with it that limitation would run after the date of final assessment. The Court held the refund claim to be within time because it was so by reckoning the limitation from the date of final assessment. There is no dispute in the present case that the duty adjusted by the appellant in PLA in accordance with the approved classification list was final pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f another co-ordinate Bench in the absence of its being brought to the notice of the Bench. It was the duty of the applicants and their Counsel to bring to the notice of the Bench any judgment in support of their case. D. In this para the applicants do not dispute that the facts and circumstances in (i) Oriental Insulation Conductor s case [1990 (47) E.L.T. 630] and (ii) National Tobacco Company s case [AIR 1972 SC 2563 = 1978 (2) E.L.T. (J 416) (S.C.)] are different from the facts and circumstances of this case. Yet they want the Bench to make the ratio and principle of law, ratio decidendi of the above cases applicable to the respondents/applicants case. We are unable to agree to this plea of the applicants. When the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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