TMI Blog2006 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11B of the Central Excise Act, 1944. It was not appealed against by the department. Pursuant to the said Order-in-appeal, the Assistant Commissioner passed order dated 27-5-02 rejecting the refund claims as barred by unjust enrichment. Appeal preferred by the assessee against the said order of the Assistant Commissioner was allowed by the Commissioner (Appeals) by Order-in-appeal No. 112/2003 dated 31-3-2003 holding that, in the faits of the case, the question of unjust enrichment did not arise. Consequently the original authority passed two orders, No. 79/03 dated 25-6-03 and No. 80/03 dated 26-6-03 allowing refund of a total amount of duty of over Rs. 4.3 lakhs to the assessee. Order-in-Appeal No. 112/03 ibid and the consequential ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was held that show-cause notice could be issued under Section 28 of the Customs Act, 1962 for demand of duty without recourse to the revisional remedy under Section 130 of the Act. She has also referred to the Apex Court s judgment in Asian Paints (India) Ltd. v. CCE [2002 (142) E.L.T. 522 (S.C.)], wherein Section 11A and Section 35E were held to operate in different fields and therefore excise duty could be recovered under Section 11A while the appeal filed by the department after the process of review under Section 35E was pending. Learned SDR has also relied on the judgement in CCE Bhubaneshwar v. Re-Rolling Mills reported in 1997 (94) E.L.T. 8 (S.C.) wherein the ratio of the judgement in Jain Sudh Vanaspati Ltd. (supra) was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department woke up from the dream of limitation and issued the two show-cause notices in March/May 2004, both of which proposed to recover the duty amount already refunded, on the ground of time-bar. These show-cause notices were contested by the party and the dispute has ultimately reached the Tribunal. 6. I have no hesitation to hold these appeals to be frivolous inasmuch as the Department, by their conduct, acquiesced in two orders of the Commissioner (Appeals) and the consequential orders of the original authority. The first of these orders-in-Appeal, accepted by the department, had given liberty to the original authority to determine both the time-bar and unjust enrichment issues and the latter evaded the first issue and determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a closer look at the facts of the present case, I find that the ratio of the decision in Jain Vanaspati (supra) cannot be applied to the facts of this case. In the present case, the question raised by the learned SDR is whether Section 11A was invocable for demanding duty already refunded to the assessee or, alternatively, whether the process of review under Section 35E of the Act could be resorted to for challenging the refund sanction orders passed pursuant to the order passed by the Commissioner (Appeals). The refund sanction orders of the original authority were only consequential to the order of the appellate authority and any process of review should have been thought of against the appellate order rather than against the consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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