9911796707
TMI Blog1996 (5) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioning refund to the respondent in the said appeal proceedings who are also respondents in the present appeal before us. The Collector (Appeals) had rejected the appeal accepting all the pleas raised by the respondent which cover the point that the review carried out by a Collector of Customs of the order of the Assistant Collector was under the provisions of Central Excises and Salt Act whereas the proceedings in question relate to Customs Act and the review as such should have been carried out under Section 129D(2) thereunder. Another pleas which found favour with her was that at the time of payment of refund there was no law regarding unjust enrichment. The third ground endorsed by her was that there was no date on the review authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to unjust enrichment. Accordingly the same would not apply to their case. He also added that if it is treated as a case of erroneous refund made by the Assistant Collector the corrective action in the matter lay in terms of Section 28 which has got a time limit restriction of six month. He raised the plea that the review action initiated by the Commissioner after the expiry of the said period of six months would be time barred. He referred to the Tribunal decision in the case Garware Polyester Ltd. v. C.C.E. - 1996 (63) ECR 331 where the bench had taken note of the Supreme Court judgments in the Jain Spinners v. ITC Ltd. cases and remanded the matter to the lower authorities for verification of the question whether refund had actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner as well as the application filed by the Assistant Commissioner did not vitiate the proceedings and the Collector (Appeals) was in error in rejecting the appeal on that ground. As regards the other plea taken by the respondent before the Collector (Appeals) that the review order of the Commissioner did not bear the date. We find on perusal of the photocopy of the relevant file of the Collectorate that the Collector had approved the action on 18-4-1991. This was within time, being one day before the completion of the period admissible for the Collector to exercise such review. Hence the order had been passed in time by the Collector. 5. The Collector (Appeals) had observed in her order that at the time of payment of refund th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application to the Collector (Appeals) being against a wrong provision and found that authorisation and the resulting application in order, we have to decide on the validity of the impugned order-in-appeal on the question of applicability of the amended Section 27 in the present case where the refund had been paid before the amendment of the said section. There would have been no doubt if the refund was not paid and the order-in-appeal favorable to the assessee-respondent had been challenged in appeal before the tribunal. In that case, it can be said that the refund claim has been kept open and hence the same would attract the new provision. What has happened here is that the refund was already paid long back and the first round of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be dealt with and disposed of in accordance with the said provision. It was held that by operation of Section 11B(3) as amended, notwithstanding the order of the High Court, no refund could be made to the respondent (therein) except in accordance with Section 11B(2). The conditional order passed by the Supreme Court for paying the amount to the respondent did not finally conclude the refund claim and hence it was held that it could not take the case out of the purview of Section 11B(3) read with the first proviso to 11B(1) as amended. If the refund already paid were to be held as erroneously granted and the amount ordered to be recovered by the department and also actually recovered, then that would be available to the department and o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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