TaxTMI 
TaxTMI 
1999 (6) TMI 124
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....Collector on 3-8-1990 on upholding these refund claims of the present appellants who were manufacturers of Fuel Injection Pumps and parts thereof falling under Heading 84.13. The period of clearance is from 19-11-1986 to 31-3-1988. 3. Heard Shri M.P. Baxi assisted by Shri C.M. Mehta, ld. Advocates for the appellants and Shri S. Sankaravadivelu, ld. JDR for the department. 4. Ld. Advocate submits that the said five Orders-in-Original were not to the satisfaction of Revenue and therefore, the department took the following legal remedial steps available to them under law :- (a)  Revenue filed appeals under Section 35E before the jurisdictional Commissioner (Appeals) wherein the following prayers were made :- (i)&emsp....
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.... also passed the Order-in-Appeal impugned before us. 6. Ld. Advocate therefore submits that the net effect of these facts as noted above is that two parallel proceedings are continuing on the same subject, i.e. whether the five refunds was sanctioned correctly or not. One stream is culminating at present with the Order-in-Appeal impugned before us and the other stream has culminated at present with their appeal before the Commissioner (Appeals) against the Order-in-Original dated 26-2-1999. 7. Ld. Advocate further submits that the net effect of para 11 of the Order-in-Appeal impugned before us is that all the prayers of the department contained in their appeals before the Commissioner (Appeals) have been allowed by the ld. C....
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.... is now well settled that any order directing an assessee to repay any amounts received as refund can only be done as a consequence of adjudicating upon a notice for demand under Section 11A and not through the Appellate remedial measures contained in Section 35E. Therefore, he submits that the Order-in-Appeal impugned, since it directs such a repayment of the amounts by the appellants, is inconsistent with this well-established law and on this ground alone, the order impugned needs to be set aside. 8. Shri S. Sankaravadivelu, ld. DR fairly concedes with the position in law that erroneously made refund can only be recovered by the department by invoking Section 11A. He therefore submits that if the ld. Commissioner had been made awa....
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....k the amounts refunded, as this Order-in-Appeal was passed in pursuance of an Appellate remedy agitated under Section 35E and not under Section 11A. In view of this conclusion, we find also that there is great merit in the submission of ld. DR that the matter be remanded to the Commissioner (Appeals) so that both the streams of proceedings can be considered together at his level. We note that fortunately in this case the appeal against the Order-in-Original issued on the show cause notice under Section 11A today lies as per submissions made by ld. Advocate, before the same Commissioner (Appeals) who has passed this Order-in-Appeal impugned, i.e. Commissioner (Appeals), Bangalore. Therefore, we find that not only the submissions of ld. DR is....