TMI Blog2000 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ross objection (E/Cross/4/90-MAS). The final order was passed without considering the defence raised in the said cross objection. The cross objection was dismissed with the following observation in paragraph 5 of the final order :- "5. The cross objection filed is only in the nature of a counter and the same is dismissed as misconceived in law". 2. It has been submitted during the hearing of the case that the appeal of the Revenue was decided ex-parte as the applicant was not heard in the matter. The appellants' cross objection was also dismissed as misconceived. It was submitted that the dismissal of the cross objection was a mistake. The applicants, as respondents in the appeal, had a right to file their defence. Even if the cross obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been decided after considering the written submissions of the applicants. Accordingly, the rectification of mistake application is allowed and final order No. 534/1995, dated 20-6-1995 is recalled for fresh consideration. 5. Having allowed the ROM as above, we now take up the appeal for consideration. The appeal of the Collector of Central Excise, Madras was directed against order-in-appeal No. 169/88(M)(D), dated 31-8-1988 passed by Collector of Central Excise (Appeals), Madras. This order-in-appeal was passed on an application filed by the Assistant Collector of Central Excise, Madras VI Divn. under Section 35E(4) of the Central Excises Salt Act, 1944 against order No. V/85/15/4/86, dated 25-2-1987 passed by the Assistant Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon such person shall pay the amount so determined. Therefore there being specific provisions for recovery of erroneously refunded amount, under provisions of Sec. 11A, order for recovery cannot be issued under provisions of Sec. 35E(2) as there is no provision covering cases of erroneous refund, the present application being specific to recover an erroneously paid amount, it is squarely covered under provisions of Sec. 11A, the Asstt. Collector may do the needful for which he is empowered under Sec. 11A of the Act. The present application not being an application for determination of such points arising out of the Asstt. Collectors' order, but for recovery of a sum of Rs. 3,68,610/-, the application cannot be entertained, as no recovery c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )]. It was submitted that in view of these decisions of the Supreme Court, show cause notice as contemplated under Section 11A of the Central Excise Act is required to be issued for recovery of erroneously refunded amounts within the time limit as provided in that Section from the relevant date. It has been further submitted that the Tribunal had held in the case of CCE, Mumbai v. Weld Flux Industries [1999 (84) ECR 525 (Tribunal)] that in the light of the aforesaid decisions of the Supreme Court, erroneous refunds are required to be recovered only under Section 11A of the Central Excise Act and not through proceedings under Section 35E. 7. The issue regarding the procedure to be followed for recovery of erroneous refunds is no more res i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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