TMI Blog1997 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... and anciliaries in their factory at Hosur. The Superintendent of the Central Excise had approved the classification under T.I. 68 of the Central Excise Tariff. The petitioners sought for re-classification under T.I. 26A(IV) of the Central Excise Tariff. A revised classification was approved by the Superintendent. Thereupon the petitioners lodged a claim on 26-8-1983 for refund of the amount erroneously paid for the period from 12-5-1981 to 28-8-1983. By an order dated 12-10-1983 the 2nd respondent ordered refund of Rs. 3,01,914.73 and sent a cheque for the said amount to the petitioner. After exercising the powers under Section 35E(2), an appeal was taken on the file of 3rd respondent and notice was given to the petitioner Company. By the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation is approved by the authority, the assessee is entitled to pay duty only on that basis, unless of course, a review is undertaken under Section 35E of the Act. The argument is that even if the classification is reviewed by the appellate authority and a different classification is made, that will not enable the authority from demanding payment as per the reclassified item without the original authority invoking the provision of Section 11A of the Act by the issue of a show cause notice. In other words, the order of the appellate authority reclassifying the tariff item, would not enable the original authority to demand the amount automatically without issuing show cause notice under Section 11A. For this purpose, reliance is placed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. We are of the opinion that this would have been an unnecessary exercise. Where several remedies are open to the authorities and one remedy is resorted to, it cannot be said the same is illegal so long as the provision of law permits the same. Having held that the order of refund was illegal, which is not questioned before us, it is totally improper to say that the amount received by the appellant should not be recredited to the department. It cannot be forgotten that a provision of law has to be interpreted in a manner which will sub-serve the maintenance of justice. We cannot be persuaded to interpret the provision of law in such a manner and in the sense that the amount erroneously refunded to the appellant should remain with him. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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