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of <h1>Rectification of mistake application allowed, final order recalled for fresh consideration. Collector's appeal rejected, recovery under Section 11A.</h1> The rectification of mistake application was allowed, leading to the recall of the final order for fresh consideration. The appeal of the Collector of ... Rectification of mistake - Recovery of erroneous refund Issues Involved: Rectification of mistake application in respect of final order, consideration of defence raised in cross objection, dismissal of cross objection, appeal decided ex-parte, recovery of erroneously refunded amounts under Section 11A vs. Section 35E.Rectification of Mistake Application: The rectification of mistake application pertained to a final order passed on appeal No. E/416/89 filed by the Collector of Central Excise, Madras against the applicants. The applicants had filed a cross objection, which was dismissed as misconceived. The Tribunal allowed the rectification application, noting that the defence raised by the respondents in the so-called cross objection should have been considered while disposing of the appeal. The final order was recalled for fresh consideration.Consideration of Defence in Cross Objection: The Tribunal observed that the cross objection filed by the applicants contained their submissions against the grounds taken in the appeal of the Revenue. The Tribunal held that the defence raised by the respondents should have been considered while dealing with the appeal. It was emphasized that the appeal should have been decided after considering the written submissions of the applicants.Dismissal of Cross Objection: The dismissal of the cross objection was deemed a mistake as the defence raised in it should have been taken into account during the appeal proceedings. The Tribunal held that whether the defence was raised through a counter or a titled 'cross objection' was immaterial; what mattered was that the respondents' submissions were considered. Consequently, the rectification of mistake application was allowed, and the final order was recalled for fresh consideration.Appeal Decided Ex-Parte: It was submitted that the appeal of the Revenue was decided ex-parte as the applicants were not heard in the matter. The appellants' cross objection was also dismissed as misconceived. The Tribunal acknowledged that the dismissal of the cross objection was an error, as the applicants had a right to file their defence, which should have been considered before passing the final order.Recovery of Erroneously Refunded Amounts: The issue raised in the appeal was whether erroneous refunds of excise duty can be recovered only under Section 11A of the Central Excise Act or whether Section 35E could also be utilized. The Tribunal held that recovery of erroneously refunded amounts must be made under Section 11A and not through review proceedings under Section 35E. This position was supported by decisions of the Supreme Court and previous Tribunal rulings, emphasizing the need for compliance with Section 11A for recovery of such amounts.Confirmation of Order-in-Appeal: The appeal of the Collector of Central Excise, Madras was rejected, and the order-in-appeal of the Collector (Appeals) was confirmed. The Tribunal upheld that recovery of erroneously refunded amounts should be carried out under Section 11A of the Central Excise Act, in line with the legal provisions and judicial precedents cited.Conclusion: The rectification of mistake application was allowed, the final order was recalled for fresh consideration, and the appeal of the Collector of Central Excise, Madras was rejected, affirming the need for recovery of erroneously refunded amounts under Section 11A of the Central Excise Act.
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