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TMI Blog2009 (1) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under Section 35E(2) does not automatically result in the recovery of the refund - the demands are not sustainable in law as the same were ordered without issuing Show Cause Notice under Section 28 of the Customs Act as required – order of recovery of refund granted earlier set aside. - C/343-344/2006 - 35-36/2009 - Dated:- 5-1-2009 - Shri P. Karthikeyan, Member (T) Shri M.N. Bharathi, Advocate, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order].- These are appeals filed by M/s. Standard Match Industries Pvt. Ltd. (SMIPL) and M/s. Rajarathnam Matches (P) Ltd. (RMPL). The impugned order affirmed the demand of Rs. 3,46,405/- from M/s. SMIPL and Rs. 2,30,150/- from M/s. RMPL respectively being the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v. Commissioner of Central Excise, Hyderabad-IV reported in 2008 (223) E.L.T. 53 (Tri.-Bang.) = 2007 (8) S.T.R. 55 (Tri.-Bang.). The learned Counsel has also furnished a copy of the CBEC's Circular No. 423/56/98-CX, dated 22-9-1998 in support of its claim that erroneously refunded amount of duty could not be recovered without issuing a Show Cause Notice under Section 28 of the Customs Act. 2. The learned JDR reiterates the findings contained in the impugned order. 3. I have carefully considered the submissions by both sides. Facts relating to both the appeals are common. A consignment each of 'wooden match splints' had been imported by the appellants in April and May, 2005. They paid CVD on the consignments imported @ 16% ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case that circular does not apply to recovery of erroneous refund of duty paid under the Customs Act. In the cases on hand, no Show Cause Notices had been issued, though the orders of the original authority were reviewed under Section 129 of the Customs Act and appeals filed before the Commissioner (Appeals) succeeded. As clarified by the CBEC, this was not sufficient to recover the erroneous refund as per law. In the Tuticorin Alkali Chemicals and Fertilisers Ltd. case (supra), a similar order of the Commissioner (Appeals) ordering recovery of the refund already paid to the appellants therein was held to be not sustainable relying on a decision of the Bangalore Bench of this Tribunal in the case of Panyam Cements and Mineral Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers in the sale of their final products safety matches. In the RCC (Sales) Pvt. Ltd. (supra), the Tribunal had held that the Chartered Accountant's Certificate stating that the excess duty paid by the appellants therein had not been passed on to its customers had to be accepted since the Revenue had not challenged the (correctness of the) certificate. In the instant case also, there is no finding by the Commissioner (Appeals) that the certificates produced by the Chartered Accountants stating that excess duty paid on captively consumed inputs had not been passed on to buyers of the final products of the appellants was not acceptable. In the circumstances, I find that the impugned order has been passed without correctly appreciating th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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