1997 (8) TMI 217

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....ng to the case are : By a Show Cause Notice dated 22-9-1992 Asstt. Collector called upon the respondent in the present appeal to show cause as to why an amount of Rs. 4,82,593.69 refunded to them under a previous adjudication order dated 15-2-1990 should not be recovered. The said amount represented the refund of differential duty granted to the respondent on the ground that the effective rate of duty payable by the respondents on their product (Glucose) was 10 per cent whereas they had paid at the rate of 15 per cent for clearances made during the period 1-7-1990 to 16-2-1991. By order-in-original dated 9-10-1991 Asstt. Collector held that the refund was bad in law and confirmed recovery of refund. By the impugned order Collector (Appeals)....

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....venue had both the options open. Under Section 11A where a mistake is detected the Assistant Collector himself could issue a Show Cause Notice whereas Section 35E had empowered the Collector to take action to rectify the mistake of a lower Adjudicating Authority. 4. Shri A.C. Jain, Advocate appearing on behalf of the respondents strongly urged that there was no question of erroneous refund on the part of the Assistant Collector as on the date of refund the provision relating to unjust enrichment had not been enacted. Even otherwise, on the question of the competence of Asstt. Collector to issue notice for readjudicating a matter already adjudicated by him, he submitted that Asstt. Collector having not been clothed with the power of ....

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....Respondent herein that the Supreme Court as well as the Tribunal have held that an Adjudicating Officer does not have the power to review his own order. The cases cited on behalf of the Department do not support the proposition that an Adjudicating Officer is competent to review his own order. In Sree Digvijay Cement Co. Ltd. v. CCE [1991 (52) E.L.T. 631] the Tribunal had held that an order of erroneous refund can be set aside only by following the procedure under Section 35E(2) of the Act. The Apex Court had also upheld the Tribunal order holding that once a refund claim has been allowed by the Asstt. Collector, the only course open for the Revenue was to settle the claim of the assessee after scrutiny of the correctness of the duty paymen....