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TMI Blog2007 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... fabrics. Prior to December, 1980 they were paying duty on the yarn captively consumed. In October, 1980 by judgment in the case of J.K. Cotton Spinning & Weaving Mills Company Ltd. v. Union of India, reported in 1981 (8) E.L.T. 887 the Hon'ble Delhi High Court held that removal of yarn which was consumed within the factory of production did not amount to removal within the meaning of Rules 9 and 49 of the erstwhile Central Excise Rules, 1944 and hence set aside the duty demand made on such captively consumed yarn. The appellants filed a revised classification list claiming nil rate of duty on the yarn consumed within the factory of production. By an order dated April, 1981 the revised classification list filed by the appellants was rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the Apex Court Judgment, the Asst. Commissioner of Central Excise issued a show cause notice dated 7th April, 1995 proposing recovery of duty of Rs. 2,96,14,265.05 which was adjudicated by Order dated 27-3-1996 confirming the demand raised in the notice. The bank guarantee furnished by the appellants, in terms of Apex Court's Interim Order were encashed by the Department on 13-3-1996. The appellants challenged the Order of the Asst. Commissioner before the Commissioner (Appeals) and vide Order dated 13th June 1996 the adjudication order was upheld and Appeal No. E/1529 and 1530/96 were preferred by the appellants before the Tribunal. 4. By Order No. C-I/1825-26/WZB/2000 dated 15-5-2000 the appeal of the assessee was allowed holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned the amount. Before disposal of the appeal of the Revenue by the Commissioner (Appeals), the Revenue challenged the Tribunal's Order dated 15-5-2000 before the Hon'ble Bombay High Court which by Order dated 17-2-2005 dismissed the Revenue's application No. 2 of 2001 on the basis of contention made by the ld. Counsel of the Revenue that the issue involved in this matter is squarely covered by the judgment of the Hon'ble Supreme Court in the case of Metal Forgings v. Union of India reported in 2002 (146) E.L.T. 241 (S.C.) and in the case of J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. CCE reported in 1998 (99) E.L.T. 8 (S.C.). 6. The Revenue succeeded in its appeal before the Commissioner (Appeals) against the adjudication Order of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2004 (178) E.L.T. 434 (T). We also note that the Hon'ble Mumbai High Court in the case of Bajaj Auto Ltd. v. Union of India - 2003 (151) E.L.T. 23 (Bom.). has followed inter alia the decision of the Apex Court in the case of Re-Rolling Mills (cited supra). The CBEC also issued, Circular No. 423/56/98- CX., dated 22-9-1998 clarifying that the Order passed under Section 35E(2) does not automatically result in the recovery of the refund and that this has to be followed by show cause notice under Section 11A which should he issued within 6 months from the date of actual refund. No decision taking contrary view on the issue in this case relating to recovery of erroneous refund has been brought to our notice. Shri K.M. Mondal, ld. Consultant on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on be termed as adjustment of duty after the final assessment thereof because the payment of duty under protest keeps the assessment alive and the protest continues till the dispute is finally settled and every thing is in the fluid state. Section 11 A has not come into play as the cause of action (relevant date) has not accrued or arisen so far. In the result, on the facts and circumstances of the case, the limitation prescribed under Section 35E should not be in accordance with Section 11A." In this decision the Tribunal had referred to the decision in Re-rolling Mills v. Collector - 1989 (43) E.L.T. 115 (T) and a few other orders laying down the same ratio as that decision and observed that 'these cases are distinguishable on facts as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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