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TMI Blog1996 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... icants filed a refund claim for Rs. 45,207/-, where a show cause notice for rejection thereof was issued. On adjudication, vide Order No. 42/93, dated 27-4-1993, the said claim was allowed. The department however felt aggrieved with the said order and exercising the powers invested in them vide Section 35E(2) of the Act, preferred an appeal to the Collector of Central Excise (Appeals), who while holding that the refund granted was not proper and setting aside the order-in-original to that extent, held that notice under Section 11A ought to have been issued within the period of six months which was not done in the instant case and held that the refund already granted was not recoverable. 3. The Department, thereupon came in appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unjust enrichment on merits solely on the ground of applicant having not filed cross objection challenging a particular finding despite the fact that Commissioner (Appeals) had dismissed the appeal of the department and had hence held the applicants entitled to all reliefs." 5. The main crux of the submission of the ld. Advocate is that after the refund has already been granted, the only course is to serve a notice under Section 11A of the Act and has referred to and relied upon the decisions already cited at the time of hearing of the appeal. It is his submission that with various decisions holding different view, there is a ground to refer the issue to the High Court for a conclusive decision. As to the second question, the ld. Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In his submission, the application deserves rejection. 7. Identifying first the salient factual position, on applicants filing a claim for refund, order was passed by the Assistant Collector sanctioning the refund. The said order sanctioning refund itself was reviewed vide Section 35E(2) of the Act and appeal was filed challenging the validity thereof. Here was not the case that under some distinct proceedings or the executive functioning that the refund was granted and the same was attempted to be recovered on the ground that the refund so made was erroneous. 8. Section 35E has been introduced with effect from 11-10-1982 by way of substitution to Sections 35, 35A and 36 and the powers were invested in the Collector/Board to file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount erroneously refunded. Ex facie, these provisions are not attracted, whereas a consequential relief, to an order, some amount is refunded and the same order sanctioning the refund itself is challenged before the appellate forum. 12. This proposition is of course, subject to any specific provision, if so made in any other ancillary provision which could go contrary to the same and hence, it becomes essential to examine whether provisions of Section 35E of the Act contemplate any contrary approach. 13. The ld. Advocates for the appellant has attempted to read the provisions of Sec. 11A of the Act in isolation on the proposition that refund when already granted, it could only be Sec. 11A which could stand attracted. But here again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct], such raising of the demand had to be preceded by issue of the Show Cause Notice under Sec. 11A. 16. This also is the view taken by the Tribunal in Andhra Sugar Mills Ltd. v. Collector - 1991 (55) E.L.T. 262 (Tri.) = 1991 (17) E.T.R. 645. 17. Plea of the contrary view taken by other Benches of the Tribunal, and thus raising all issues of law, because of probable alternate interpretation, also does not appear correct. The statutory provisions are clear and unambiguous and if that be so, there appears no scope to refer the matter, if at some level some requirement which actually does not figure in the section itself, is read as controlling the same. 18. There, therefore, does not appear any cause for referring Question No. 1 as form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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