TMI Blog1999 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ies for rebate was rejected on the ground that they were not entitled to rebate under notification. The matter was pursued up to the level of the Supreme Court which passed orders in its judgment in Saswad Mali Sahakari Sakhar Karkhana Ltd v. Union of India, 1995 (75) E.L.T. 28 (S.C.) accepting the contention that raised by the sugar mills before it with regard to interpretation of the notification. 2. Subsequent to the order of the Supreme Court, the Assistant Commissioner sanctioned to each of the appellants, refund of the amount calculated in accordance with the direction of the Supreme Court. 3. The department filed applications under Section 35E(2) of the Act against these orders to the Commissioner (Appeals). It was contended in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable. 6. The Departmental Representative contends that this point was not raised before the Collector (Appeals) and cannot be raised now. He contends that Section 35E(2) of the Act does not contemplate that the authority passing the order must have passed an order as an adjudicating authority; it only provides that that authority must be an adjudicating authority. The Assistant Collector is such an adjudicating authority. 7. The Departmental Representative also makes submissions with regard to limitation and the applicability of Section 35E(2) of the Act. 7A. Sub-section (2) of Section 35E of the Act empowers the Board and the Commissioner to call for and examine records of proceedings so as to satisfy themselves according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no other authority. 8. The position in the case of sub-section (2) is different. The Commissioner has various categories of adjudicating authorities (Additional Commissioner, Deputy Commissioner, Assistant Commissioner, Superintendent) who may pass orders or decisions, the propriety or legality he may wish the Commissioner (Appeals) to examine. This, in our view, is a reason for the slight difference in the wordings of sub-section (1) and sub-section (2). 9. It is also significant to note that sub-section (2) refers to proceedings in which an adjudicating authority has passed an order. If the intention were to empower the Commissioner to apply to the Tribunal orders not only in adjudication proceedings but others too, the sub-section w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rosemount India v. CCE - 1998 (99) E.L.T. 502, has, following the Supreme Court judgment in Collector v. Re-rolling Mills Ltd. - 1997 (94) E.L.T. 8, held that it is necessary, where duty is sought to be recovered by means of refund alleged to have been wrongly paid, proceedings under Section 35E(2), that demand under Section 11A of the Act must be issued. No such demand has been issued in the present case. The appeals cannot therefore be maintained on this count too. 12. Considerations as to whether claim was barred by limitation, or whether the amount could or could not be paid to the assessee by virtue of the provisions of sub-section (2) of Section 11B of the Act are not relevant for disposing of this appeal. Whatever the merits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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