TMI Blog2004 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... our appeals are concerned, the issue being common, they are taken up together for disposal as per law. 2. The issue involved in these appeals is as to whether the adjudicating authority, after having sanctioned the refund, and before the refund is made to the appellants, can re-open the issue by issue of Show Cause Notice under Section 11A of the Act. The second issue is as to whether the refund is hit by provisions of unjust enrichment when the assessments were provisional. The learned Counsel submits that on both these points, the issue is covered in his favour. He submits that once the order of refund has been passed by the Assistant Commissioner and before the refund was granted to the appellants, he cannot review his own order by iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Statute. He further relied on the judgment rendered by the Tribunal in the case of Sree Digvijay Cement Co. Ltd. v. CCE - 1991 (52) E.L.T. 631 (Tribunal) wherein it has been held that if recovery of refund erroneously made due to mis calculation of quantum of refund, then the procedure to be adopted is to file an appeal under Section 35E of the Act and simultaneously initiate proceedings under Section 11A of the Act within the time limit prescribed. He submits that as the same has not been done, the proceedings are required to be set aside. 3. The learned SDR reiterated the departmental view and relied on the Larger Bench judgment rendered in the case of Best Crompton Engg. Ltd. v. CCE, Chennai - 2000 (121) E.L.T. 272 (Tribunal-LB) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and order passed by his predecessor and also whether the return could be considered as profit and deny claim of the appellants. In both these issues, we have to answer in favour of the assessee. 9. As can be noted, the learned Assistant Collector had gone into the details of the claim for refund made by the assessee on the basis of the order passed by the Collector (A) in respect of the same goods as not being dutiable under TI 14DD in the case of Aeromax Chemicals. There was no dispute with regard to the duty having been paid under protest. The Assistant Collector had also taken the report of the Superintendent and after careful examination of the case, had allowed the refund. There is no dispute with regard to the duty paid in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review is expressly conferred by the Statute. In the present case, the authority can start the initial proceedings under Section 11A of the Act only if the erroneous refund has been made. No such refund has been made in the present case. Therefore, OIO earlier passed by the Assistant Commissioner is required to have been reviewed and appeal filed before the Commissioner (Appeals) which has not been done and, therefore, the proceedings initiated by the same authority under Section 11A without resorting to review proceedings is not correct in law. The judgment of the Polymer and Allied Products affirmed by the Apex Court applies to the facts of the case. The same view has been expressed by the Tribunal in the case of Sree Digvijay Cement Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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