9911796707
TMI Blog1998 (1) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption was rejected by the Assistant Commissioner vide his Order No. MP/46/85, dated 16-12-1985. Accordingly, the Appellants had filed an appeal before Collector of Central Excise (Appeals), Bombay. With the introduction of Central Excise Tariff Act, 1985, they filed a classification list No. 12/86 under protest w.e.f. 1-3-1986 classifying the product under Chapter 90 of Central Excise Tariff Act, 1985. This classification list was approved without vacating the party s protest. Accordingly they paid duty under protest during the period from 1-3-1986 to 31-3-1986. Thereafter, they filed another classification list No. 3/86 effective from 1-4-1986 for the financial year 1986-87 and also lodged their protest letter on 8-4-1986. This classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner vide his impugned order has held that the protest lodged by the party will continuously be operative from 16-12-1985 and that the two refund claims sanctioned earlier by the Assistant Commissioner were correctly granted. 4. The Collector again sought review of Commissioner s order on the grounds that with the introduction of Central Excise Tariff Act, 1985, the protest lodged on 16-12-1985 under the old tariff became null and void; that the refund claim for the period from 1-3-1986 to 21-3-1986 was time barred, as the protest letter under Rule 233B was filed only on 21-3-1986; that the Order-in-Appeal dated 6-10-1986 is applicable to the period covered by the first Order-in-Original dated 16-12-1985 and there is no sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (81) E.L.T. 154 was relied upon. The ld. Sr. Counsel contended citing Tribunal decision reported in 1994 (69) E.L.T. 766 that even in case of review application a notice within time limit under Section 11A for recovery of erroneous refund has to be issued. Tribunal decision reported in 1996 (83) E.L.T. 187 on the same lines was also cited. The ld. Sr. Counsel referred to the reasoning in the Assistant Commissioner s Order to urge that protest letter of 25-12-1985 would have continuing effect even after 1-3-1986. 7. Ld. DR Shri S.V. Singh relied upon Tribunal decision in the case of Andhra Sugars v. Collector - 1991 (55) E.L.T. 262 (Tribunal) = 1991 (17) ETR 645 to contend that having regard to the scheme of review under Section 35E of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itude of the powers of Collector (Appeals) under Section 35E by reading into it the provisions of Section 11A of the Act. The High Court Division Bench confirming the judgment aforesaid held that where several remedies are open to the authorities and one remedy is resorted to, it cannot be said that the same is illegal so long as provision of law permits the same. We cannot be persuaded , observed the Division Bench, to interpret the provision of law in such a manner and in the sence that the amount erroneously refunded to the Appellant should remain with him. It is the natural consequence of the order of the Appellate authority that the amount erroneously refunded should be re-credited to the department. We do not find any substance in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act which is in pari materia with Section 11A of Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed with no order to costs. Applying the ratio of the Supreme Court judgment, in the present appeal, admittedly no notice under Section 11A has been issued in this case so far, for the recovery of the erroneous refund. The Assistant Commissioner in his order has observed, Even if at this stage the refund is said to have been erroneously granted ....... the erroneous refund could be demanded by issuing proper show cause notice under the provisions of Section 11A. This unfortunately has not been done at earlier stage or even at the time of fili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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