1999 (12) TMI 214

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....claim filed by each of these companies for rebate was rejected on the ground that they were not entitled to rebate under notification. The matter was pursued up to the level of the Supreme Court which passed orders in its judgment in Saswad Mali Sahakari Sakhar Karkhana Ltd v. Union of India, 1995 (75) E.L.T. 28 (S.C.) accepting the contention that raised by the sugar mills before it with regard to interpretation of the notification. 2. Subsequent to the order of the Supreme Court, the Assistant Commissioner sanctioned to each of the appellants, refund of the amount calculated in accordance with the direction of the Supreme Court. 3. The department filed applications under Section 35E(2) of the Act against these orders to th....

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....n sanctioning the refund. Therefore, the appeal was not maintainable. 6. The Departmental Representative contends that this point was not raised before the Collector (Appeals) and cannot be raised now. He contends that Section 35E(2) of the Act does not contemplate that the authority passing the order must have passed an order as an adjudicating authority; it only provides that that authority must be an adjudicating authority. The Assistant Collector is such an adjudicating authority. 7. The Departmental Representative also makes submissions with regard to limitation and the applicability of Section 35E(2) of the Act. 7A. Sub-section (2) of Section 35E of the Act empowers the Board and the Commissioner to call for an....

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....y review or refer under this sub-section the order of the Commissioner and of no other authority. 8. The position in the case of sub-section (2) is different. The Commissioner has various categories of adjudicating authorities (Additional Commissioner, Deputy Commissioner, Assistant Commissioner, Superintendent) who may pass orders or decisions, the propriety or legality he may wish the Commissioner (Appeals) to examine. This, in our view, is a reason for the slight difference in the wordings of sub-section (1) and sub-section (2). 9. It is also significant to note that sub-section (2) refers to proceedings in which an adjudicating authority has passed an order. If the intention were to empower the Commissioner to apply to t....