9911796707
TMI Blog2008 (9) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant, the adjudicating authority sanctioned the refund to the appellant by five different adjudication orders. The Revenue aggrieved by such refund order, filed an appeal before the Commissioner (Appeals). The learned Commissioner (Appeals) after considering the representation made before him by both the parties, came to the conclusion that all the Orders-in-Original are incorrect and liable to be set aside and did so. The appellant aggrieved by such Order-in-Appeal, is in appeal before the Tribunal. 3. Learned Counsel submits that in this case the refund claims were sanctioned by the jurisdictional Dy. Commissioner of Central Excise by 5 different adjudication orders. It is his submission that Revenue has filed only appeals against su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority. The learned Commissioner (Appeals), while allowing the appeal filed by the Revenue has held as under : - I, therefore, set aside the Order-in-Original mentioned above passed by the Deputy Commissioner of Central Excise, Division-I and allow the departmental appeals. I direct the assessee to pay the amount of duty erroneously refunded along with interest as per the legal provisions. 7. It can be seen from the above reproduced portion of the impugned order, that the Commissioner (Appeals) has directed to pay the amount of duty erroneously refunded alongwith interest. I find that the provisions of Section 11A specifically cover the situation. It is very clearly mandated that a show cause notice has to be issued f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1972-2000 (123) E.L.T. 918 (Tri.) and Panyam Cements Mineral Indus. Ltd. v. CCE - 2004 (178) E.L.T. 434 (T). We also note that the Hon ble Mumbai High Court in the case of Bajaj Auto Ltd. v. Union of India - 2003 (151) E.L.T. 23 (Bom.), has followed inter alia the decision of the Apex Court in the case of Re-rolling Mills (cited supra). The CBEC also issued, Circular No. 423/56/98-CX., dated 22-9-1998 clarifying that the order passed under Section 35E(2) does not automatically result in the recovery of the refund and that this has to be followed by show cause notice under Section 11A which should he issued within 6 months from the date of actual refund. No decision taking contrary view on the issue in this case relating to recovery of err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er protest and such payment of differential duty cannot by any stretch of imagination be termed as adjustment of duty after the final assessment thereof because the payment of duty under protest keeps the assessment alive and the protest continues till the dispute is finally settled and everything is in the fluid state. Section 11A has not come into play as the cause of action (relevant date) has not accrued or arisen so far. In the result, on the facts and circumstances of the case, the limitation prescribed under Section 35E should not be in accordance with Section 11A. In this decision the Tribunal had referred to the decision in Re-rolling Mills v. Collector - 1989 (43) E.L.T. 115 (T) and a few other orders laying down the same ratio a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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