TMI Blog1997 (9) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of certain points arising out of the Order dated 24-12-1987 passed by the Assistant Commissioner of Central Excise, Tinsukia. 2. Briefly stated the facts of the case are that the respondents were engaged in the manufacture of wood and articles of wood, synthetic resin and other goods N.E.S. falling under the erstwhile Tariff Item 68. 3. The respondents filed certain refund claims with their jurisdictional Assistant Commissioner of Central Excise in terms of Notification Nos. 85/85, dated 17-3-1985 and 175/86, dated 1-3-1986. As the Department felt that the said Refund Claims were not admissible to the respondents herein, they were issued show cause notice calling upon them to show cause to the Assistant Commissioner as to why their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Bhaskar Gupta, learned Counsel for the respondent company pleaded that the issue had been settled in favour of the respondents by the Tribunal in the following decisions and judgments :- (i) 1988 (37) E.L.T. 222 (Tribunal) in the case of Collector of Central Excise v. Universal Radiators Ltd.; (ii) 1991 (52) E.L.T. 631 (Tribunal) in the case of Sree Digvijay Cement Co. Ltd. v. Collector of Central Excise; (iii) 1989 (43) E.L.T. 115 in the case of Re-rolling Mills v. Collector of Central Excise. In view of the above decisions, he pleaded that the Order passed by the Commissioner of Central Excise (Appeals) was a legal and valid Order and the Department s Appeal should be rejected. 6. Appearing on behalf of the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents have tried to distinguish the said judgment of the Larger Bench from the earlier decisions on the ground that the facts in the case of Asian Paints Ltd. were different from the facts of the instant case inasmuch as in the case of Asian Paints, it was a case of demand of short-levy whereas the instant case involves an issue of recovery of erroneously granted refund. In our view, this factual difference between the two cases will not make much of a difference as the ratio laid down by the Larger Bench decision fully covers the issue involved in the appeal before us. 12. The Order passed by the Assistant Commissioner in the instant case is a proper adjudication order having been passed after issuance of a show cause notice proposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be upset by issuance of a show cause notice under the provisions of Section 11A by an authority below the rank of adjudicating authority. We also observe that without setting aside the Order granting erroneous refund, the cause of action for recovery of such a refund erroneously made, cannot arise. There is no other way for setting aside the Order of an erroneous refund except by following the procedure laid down under Section 35E(2) of the Act. 13. We have also considered the decisions relied upon by the respondents representative. Factual position in those cases is not clear as to whether proper adjudication orders were passed in those cases or not as the language used while narrating the facts is that the refund claim was sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjects, general interpretation must be construed as excluding the matters specifically provided for in the specific provision dealing with these matters. However, we do not agree with the above proposition as the two provisions of law are not overlapping each other and playing a separate role in separate arenas. It has been discussed in the preceding paragraph that the provisions of Section 11A of the Act would come into play in cases where the respondents refunds are sanctioned simpliciter and the provisions of Section 35E would apply where adjudication orders are passed granting refund. 15. In view of the foregoing discussions, the Order passed by the Commissioner (Appeals) is set aside and the appeal filed by the Department is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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