TMI Blog1996 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a refund claim for Rs.45,000/- on 8-10-1991, for amount paid during the period 23-1-1990 to 12-3-1990. The Show Cause Notice was issued on 25-3-1992 for adjudicating upon the same refund claim. However, the Assistant Collector sanctioned the refund claim. Against the said decision the department went in appeal before the Collector (Appeals), pleading that the issue of unjust enrichment had not been properly considered by the Assistant Collector. While dismissing the appeal of the Department, however the Collector (Appeals) held that though the order of the Assistant Collector was liable to be set aside on the issue of unjust enrichment and refund sanctioned was not proper, rejected the appeal of the Department holding that for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) are in relation to the unamended provisions when the right to appeal was not available to the department. He pleads that with law clearly laid down in the Tribunal decision in Andhra Sugars Mills Ltd., the approach of the Collector (Appeals) is not the correct one and that portion of his order holding the appeal as not maintainable and sustaining the order on the ground that no notice under Section 11A is given and that proceedings under Section 35E ought to preceed by notice under Section 11A, cannot be sustained and when on merits he has allowed the contentions of the department holding the refund as not available, the appeal should be allowed and the order of the Assistant Collector sanctioning refund ought to be set aside. 5. Shri G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for nor contemplated under any provisions made in the Act, in this regards. 9. Recourse appears to have been taken to the provisions contained in Section 35A(3) Second Proviso, by the Collector (Appeals). Reading of subSection (3) however clearly indicates that the second proviso is intended to be invoked for entirely different purpose, namely when, in an appeal filed by the assessee against same order, if the Collector (Appeals ) feels that the appellants (assessee) should be ordered to pay something more than what has been adjudicated upon, then before ordering accordingly, a notice vide Section 11A should be served. 10. Apart from the fact that the interpretation is explicit, reading of the said provisions in a way as is attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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