9911796707
TMI Blog2004 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in a circumstance, when erroneous refund has been made then the procedure to be adopted is to initiate proceedings for recovery of the erroneous refund in terms of Section 11A of the Act as held by the Larger Bench in the case of Best Crompton Engg. Ltd.[ 2000 (9) TMI 91 - CEGAT, NEW DELHI] . In the present case, the same Assistant Commissioner has issued a Show Cause Notice u/s 11A and passed the OIO which is impugned, without filing a review u/s 35E of the Act. Therefore, the issue is covered by the judgment rendered by the Tribunal in the case of Polymer Allied Products v. CCE [ 1991 (7) TMI 217 - CEGAT, NEW DELHI] , which has been affirmed by the Apex Court [ 1992 (8) TMI 307 - SC ORDER] . The authority can start the initial proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken up together for disposal as per law. 2. The issue involved in these appeals is as to whether the adjudicating authority, after having sanctioned the refund, and before the refund is made to the appellants, can re-open the issue by issue of Show Cause Notice under Section 11A of the Act. The second issue is as to whether the refund is hit by provisions of unjust enrichment when the assessments were provisional. The learned Counsel submits that on both these points, the issue is covered in his favour. He submits that once the order of refund has been passed by the Assistant Commissioner and before the refund was granted to the appellants, he cannot review his own order by issuing a Show Cause Notice under Section 11A of the Act. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Sree Digvijay Cement Co. Ltd. v. CCE - 1991 (52) E.L.T. 631 (Tribunal) wherein it has been held that if recovery of refund erroneously made due to mis calculation of quantum of refund, then the procedure to be adopted is to file an appeal under Section 35E of the Act and simultaneously initiate proceedings under Section 11A of the Act within the time limit prescribed. He submits that as the same has not been done, the proceedings are required to be set aside. 3. The learned SDR reiterated the departmental view and relied on the Larger Bench judgment rendered in the case of Best Crompton Engg. Ltd. v. CCE, Chennai - 2000 (121) E.L.T. 272 (Tribunal-LB) wherein it has been held that recovery is required to be made for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as profit and deny claim of the appellants. In both these issues, we have to answer in favour of the assessee. 9. As can be noted, the learned Assistant Collector had gone into the details of the claim for refund made by the assessee on the basis of the order passed by the Collector (A) in respect of the same goods as not being dutiable under TI 14DD in the case of Aeromax Chemicals. There was no dispute with regard to the duty having been paid under protest. The Assistant Collector had also taken the report of the Superintendent and after careful examination of the case, had allowed the refund. There is no dispute with regard to the duty paid in this case. The only course open for the Revenue was to have settled the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initial proceedings under Section 11A of the Act only if the erroneous refund has been made. No such refund has been made in the present case. Therefore, OIO earlier passed by the Assistant Commissioner is required to have been reviewed and appeal filed before the Commissioner (Appeals) which has not been done and, therefore, the proceedings initiated by the same authority under Section 11A without resorting to review proceedings is not correct in law. The judgment of the Polymer and Allied Products affirmed by the Apex Court applies to the facts of the case. The same view has been expressed by the Tribunal in the case of Sree Digvijay Cement Co. Ltd. v. CCE noted supra. In so far as the second issue is concerned, we find that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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