TMI Blog2001 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,642.97 on the ground that the actual rate of duty applicable on 1-3-97 and 2-3-97 in respect of Glass and Glassware was 8% ad valorem whereas they had cleared the goods by paying duty at the rate of 10% ad valorem. The said refund claim was considered by the Assistant Commissioner of Central Excise who vide his order dated 9-5-97 sanctioned the refund claim and allowed the appellant to take the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of unjust enrichment did not apply. 1.3 The said submissions of the appellant did not find favour with the original authorities as well as with the appellate authority who confirmed the demand of duty of Rs. 16,642.97. 2. I have heard Shri B.N. Chattopadhyay, ld. Consultant for the appellants and Shri V.K. Chaturvedi, ld. SDR for the Revenue. 3. I find that the Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 11A, according to which the show-cause notice should be issued within six months from the date of actual refund. Since the time-limit for filing an appeal under Section 35E(2), is longer than the time-limit prescribed under Section 11A, the show-cause notice should precede the proceedings under Section 35E (2), otherwise the order under Section 35(2) becomes an empty formality a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A without seeking setting aside of the refund order cannot be held to be a valid proceedings. As such without going into the question as to whether the refund granted to the appellant was paid by them to their customer or not, I set aside the impugned order on this ground alone and allow the appeal with consequential relief to the appeal. Stay Petition also gets disposed of. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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