1991 (3) TMI 245

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....ms, Aurangabad Div., Aurangabad, by his order No. 48/88, dated 31-5-1988 granted a refund of Rs. 1,24,10,535.78 P to M/s. Bajaj Auto Ltd, Waluj, the Respondents, in this case. 2. The Collector of C. Excise & Customs, Aurangabad, while reviewing this order of the Asstt. Collector, found the same to be not legal and proper, authorised the Asstt. Collector of C. Excise & Customs, Aurangabad Div. to ....

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....he ratio of Roplas judgment is not applicable in their case. 5. The applicant, viz. the Department, also appeared for the hearing on 12-3-1991 and submitted that in view of the judgment in the case of Roplas (I) Ltd., the respondents were not eligible for the refund sanctioned to them. 6. I have considered the submissions. I am not considering all the submissions made by the respondents and suff....

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....oneous refund duty can be recovered is a notice under Section 11A; an application and proceedings under Section 35E are not a step in that direction. If it were, then the department can, by using this section, recover erroneously refunded duty or short levied duty for which no notice was issued within the time specified under Section 11A, the primary and fundamental section, and the fountainhead o....

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....ly the one written in Section 11A. This section prominently gives leave to the Asstt. Collector to issue notices if any money representing duty is found to have been lost by mistaken refund. There is no other course for the authorities to the recovery of such duty." 'Section 35A second proviso in fact is designed to protect the assessee from such exactions as may be made when the Department finds....