TMI Blog2005 (2) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ated sheets (ACC sheets, for short) falling under SH 6804.00 of the CRTA Schedule. They sell this product from their factory gate as well as from their depots situated in different parts of the country. As the actual price to be sold from the depots is not known at the time of removal of goods from the factory gate, the appellants adopt the nearest prevailing value for the purpose of payment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out reviewing the refund order under Section 35EA of the Act is legally not maintainable. It has been pointed out that the SCN for recovery of duty was issued by the original authority which had sanctioned refund of the amount and that such proceedings are void in law inasmuch as the said authority had no power to review its own order. The refund order ought to have been reviewed by the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata). 3. Mahabir Industries v. CCE, 2002 (140) E.L.T. 261. 3. Ld. SDR has, on the other hand, submitted that it was open to the department to recover an erroneously refunded amount of duty without recourse to review of the refund order. In this connection, reliance has been placed on the Apex Court's decision in Re-Rolling Mills (supra) as well as the court's earlier judgment in UOI v. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontested by the party. When the matter eventually came up before the High Court, the court took the view that no SCN under Section 28 could have been issued until and unless the order under Section 47 had been revised under Section 130. The Supreme Court disapproved this view and held that an order under Section 47 obtained by the employment of fraudulent methods did not have to be set aside by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this precedent and apply the ratio of the Supreme Court's decision in Jain Shudh Vanaspati (supra) to the facts of the instant case and, accordingly, reject the appellants' contention that a SCN demanding erroneously refunded duty could not be issued under Section 11A without revision/review of the refund order. No other issue has arisen from the submissions made in this case. 5. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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