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2015 (12) TMI 242 - AT - CustomsDemand of recovery of consequential refund sanctioned consequent to the Hon'ble High Court of Madras orders which attained finality - Denial of exemption under Notification No.133/85 - Department disputed the appellant’s claim on the ground as per the amended Notification vide Notfn No.306/86, the power project shall mean ‘such project whose output or end product is power but shall not include captive power plant set up by the units engaged in activities other than power generation’ - High Court declared the Explanation under Notification No.306/86 to Notification No.133/85, dated 19.04.1985 is unconstitutional, void and ultra vires and also directed refund in excess of 25%. Held that:- Revenue having failed in both writ appeal as well as in review application vide the High Court's orders dt. 17.7.2000 and 8.10.2009 respectively, the Hon'ble High Court's order dt. 2.3.1995 has attained finality and binding on the department as far as this appellant is concerned. Therefore, we do not see any error in the adjudicating authority’s order who diligently complied the Hon ble High Court’s Order. The adjudicating authority while sanctioning the refund had clearly brought out in his order dt. 8.4.2011, all aspects including the Hon'ble Supreme Court judgment by relied by Revenue in the case of Union of India Vs Indian Charge Chrome (1999 (8) TMI 69 - SUPREME COURT OF INDIA). - Revenue has power to review any order of the lower authority under Section 129B of Customs Act whereas in the present case the adjudicating authority had sanctioned the consequential refund as per the Hon'ble High Court order which attained finality. In this scenario, the Revenue has no valid grounds to say that the adjudicating authority has erred in sanctioning the refund both on merits as well as on unjust enrichment. Further, the LAA has no power to go beyond the High Court's order to set aside the refund sanctioned by L.A. The jurisdictional High Court Order is binding on the Revenue and the LAA and the appellant. - Decided in favour of assessee.
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