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2011 (1) TMI 876 - CESTAT, BANGALORE
Section 128 and 129 D(2) - There is no dispute that provisions in the Act pertaining to levy, collection, refund etc. apply to levy, collection, refund etc of cess levied under the APFPEC Act - As provisions relating to levy and collection are borrowed, the provisions relating to short levy, short payment, concomitant disputes and the remedies provided in Section 128 and 129 D(2) of the Act should also be held to have been borrowed for the purpose of APFPEC Act by virtue of the above sub-section - Therefore, reject the objection raised by M/s. Al Gyas Exports Pvt. Ltd.
As regards the claim that a refund claim for excess duty paid can be validly made without challenging assessment under the act relying on the judgment of the Apex Court in the case of Karnataka Power Corporation Ltd. Vs. CC(Appeals) [2002 -TMI - 46268 - SUPREME COURT OF INDIA], note that a Larger Bench of the Tribunal had considered the ratio of the above decision and held that a refund claim was not maintainable unless the assessment order in pursuance of which duty paid was challenged and modified / set aside.