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of <h1>Tribunal Rules on Refunds: Assistant Commissioner Can't Review Sanctioned Orders; Erroneous Refunds via Section 11A.</h1> <h3>FORBES GOKAK LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, BELGAUM</h3> FORBES GOKAK LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, BELGAUM - 2005 (182) E.L.T. 219 (Tri. - Bang.) Issues involved: Appeals arising from OIA No. 332/2002-C.E., dated 24-5-2002; whether the adjudicating authority can re-open the issue after sanctioning the refund; whether the refund is affected by unjust enrichment due to provisional assessments.Issue 1 - Re-opening of Refund Issue:The learned Counsel argued that once the order of refund is passed, the authority cannot review it before the refund is granted, citing relevant case law. The Tribunal's decision in Polymer & Allied Products v. CCE was referenced, affirmed by the Apex Court, emphasizing that the Assistant Commissioner lacks the power to review his own order. The Tribunal further held that if an erroneous refund is made, proceedings under Section 11A should be initiated. The SDR, however, relied on the Larger Bench judgment in Best & Crompton Engg. Ltd. v. CCE, Chennai, stating that recovery for erroneous refund must be under Section 11A.Issue 2 - Unjust Enrichment in Provisional Assessments:The Tribunal noted that in the present case, the Assistant Commissioner sanctioned the refund without any payment made, necessitating a review under Section 35E of the Act. The Tribunal cited the Larger Bench decision in Best & Crompton Engg. Ltd., stating that erroneous refunds should be recovered under Section 11A. The Tribunal found that the Assistant Commissioner's actions were not in accordance with the law, as per the judgments in Polymer & Allied Products and other relevant cases. The Apex Court's ruling in Hindustan Metal Pressing Works v. CCE was also cited to support the position that unjust enrichment principles do not apply to provisional assessments.The Tribunal concluded that the impugned orders were required to be set aside, and the appeals allowed with consequential relief, if any.
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