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TMI Blog2016 (3) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... r' and as such this appeal is an abuse of the process of loss. In this view of the matter the appeal of Revenue is dismissed as no Show Cause Notice was issued. - Appeal No.E/1839/2005 (SM) - Final Order No.70872/2016 - Dated:- 8-3-2016 - Shri Anil Choudhary, Judicial Member Present for the Appellant: Shri Pawan Kumar Singh (Superintendent) AR Present for the Respondent: Shri Kapil Vaish (CA) Per: Anil Choudhary Revenue is in appeal against Order of Commissioner (Appeals) dated 28/2/2005 passed by the Commissioner (Appeals)/ Customs Central Excise, Meerut-II. 2. The brief facts are that M/s L.H. Sugar Factories Ltd. the respondent had filed rebate claim under Notification Number 132/82 dated 21.04.1982 as amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion for consideration before the Honourable High Court was whether the bar of unjust enrichment is applicable in respect of rebate claims . Vide Ex-party Order dated 9/4/2015 after hearing the Counsel for the Revenue the Hanourable High Court noticed that the issue of unjust enrichment, in the matter of rebate/claim, came up for consideration before the Apex Court in the case of Commissioner, Central Excise, Lucknow Vs. Kesar Enterprises Ltd. itself reported in 2006 (197) E.L.T. 317 ( S.C.). By judgement dated 23/3/2006 the Apex Court was pleased to hold that the principle of undue enrichment would be applicable and the assessee would not be entitled to refund of the excess amount of duty paid by it. With this observation the Honou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (Tri.-Mumbai) under the fact that in an order sanctioning refund was set aside by Commissioner appeals and the assessee was in appeal before this Tribunal, the question before the Tribunal was for recovery of erroneous refund whether it is required to show cause notice under section 11 A of the Central Excise Act/ 1944 or review under Section 35E, ibid is sufficient. The Tribunal observed that the issue stands settled by case laws and C.B.E. C. Circular. It was held that show cause notice under section 11 A is required for recovery of erroneous refund within the time limit as prescribed, Accordingly the order of Commissioner (Appeals) setting aside the refund order was set aside and the appeal allowed. The Honourable Tribunal have obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote 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. 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 erroneous refund has been brought to our notice. Shri K.M. Mondal, Id. Consultant on behalf of the Revenue relies upon the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 11 A 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 as that decision and observed that x these cases are distinguishable on facts as well as the language used therein'. The decision of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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