TMI Blog2010 (3) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... d in holding that the show cause notice issued by the adjudicating authority on the ground of unjust enrichment, would amount to review of his own order which was not permissible, order of the Tribunal whereby it has confirmed the findings recorded by the Commissioner (Appeals) does not suffer from any legal infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal, appeal is accordingly dismissed. - Tax Appeal No. 582 of 2008 - - - Dated:- 19-3-2010 - D.A. Mehta and H.N. Devani, JJ. Shri A.Y. Kogje, S.C., for the Appellant. [Judgment per : H.N. Devani, J. (Oral)]. In this appeal under Section 130 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent. The show cause notice came to be adjudicated vide order-in-original dated 30th October, 2003 whereby, inter alia, demand of customs duty amounting to Rs. 5,34,695/- was confirmed. In appeal, the Commissioner (Appeals) held that the adjudicating authority had no jurisdiction to confirm such a demand and set aside only that part of the order, whereas the order of confiscation under Section 111 of the Act and redemption fine under Section 125(1) of the Act was upheld. As the respondent had already deposited the duty amount, it made an application for refund. Vide order-in-original dated 22nd February, 2005, the claim for refund to the extent of Rs. 2,92,585/- came to be rejected whereas refund of Rs. 2,42,110/- came to be sanctioned. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried the matter in appeal before the Tribunal. The Tribunal agreed with the reasoning adopted by the Commissioner (Appeals) and dismissed the appeal. 6. Mr. A.Y. Kogje, learned Standing Counsel for the appellant-revenue invited attention to the provisions of Section 28 of the Act to submit that where any duty has been erroneously refunded, it is permissible for the adjudicating authority to serve notice requiring the concerned person to show cause as to why he should not pay the amount specified in the notice, it was submitted that while making the order dated 22nd February, 2005 the aspect of unjust enrichment had not been considered, hence the refund made pursuant to the said order could be said to have been erroneously refunded so as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted by the earlier order should not be rejected. 8. Sub-section (2) of Section 129D empowers the Commissioner of Customs to call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under the Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and to direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner in his order. Sub-section (4) thereof provides for preferring an appeal against the order of the concerned authority. In the circumstances, if the adjudicating authority was of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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