TMI Blog2000 (4) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of the above order the appellant filed a refund application to the Asstt. Commr. for refund of duty of Rs. 6,80,307.50 which became due to them for the period 1-7-1975 to 31-3-1977. The refund claim was scrutinised by the proper officer and was ultimately sanctioned on 31-11-1992. The successor of the Asstt. Commr. issued a show cause notice dated 31-3-1993 proposing recovery of the amount which was more than Rs. 6 lacs on the ground that at the time of sanctioning of the refund claim undue enrichment aspect was not considered and second on the ground that Tribunal while passing the orders in respect of eligibility of the exemption Notification No. 161/75 did not consider the lacunae in the Notification as the same was not raised befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide on the said ground. 4. After considering the submissions made from both sides we find that the Tribunal in the case of Sree Digvijay Cement Co. Ltd. has already taken a view relying upon the earlier orders of the Tribunal in the case of C.C.E. v. Universal Radiators Ltd. Para 8 of the said judgment dealing with matter is being reproduced below for better appreciation : "8. However, the order passed under Section 35E(2) does not automatically result in recovering the erroneous refund. This order should be followed by a show cause notice under Section 11A, according to which the show cause notice should be issued within six months from the date of actual refund. Since the time-limit, for filing an appeal under Section 35E(2), is longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trine of unjust enrichment is not applicable to the case for demand for erroneous refund under Section 11A in respect of refund already granted. This judgment has been further followed in the case of C.C.E., Bombay-II v. Mansukh Dyeing and Printing Mills - 1999 (113) E.L.T. 179 (T) = 1999 (33) RLT 504 (CEGAT). Though this issue has not been raised by the appellants but we observe that as the matter relates to recovery of the erroneously granted refund and duty has been confirmed against the appellants on the ground of unjust enrichment, the ratio of this decision would apply. 7. In view of the above we set aside the impugned order and allow the appeal with consequential relief to the appellants. - - TaxTMI - TMITax - Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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