TaxTMI 
TaxTMI 
2001 (5) TMI 685
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....re, 2. Perusal of the said order of the Assistant Commissioner reveals :- (a)  The appellants herein, (hereinafter referred to as MICO) were sanctioned a refund of an amount of Rs. 1,29,05,849.57 out of total refund of Rs. 1,46,71,533.10 claimed as MICO, gave a letter dated 5-7-1989 that they were not in a position to pass on the benefit of refund to their customers. The then Asstt. Commissioner adjudicated the case and passed the refund order. Five refund claims were sanctioned with the amounts to be released by cheques after receipt of confirmation from the jurisdictional Central Excise Officers in charge of consignee factory to the effect that no Modvat credit availed by them on the clearances issued under the claims. The....
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....led. It was further alleged that provision of Rule 233B was not observed, therefore, the duty payment was not under protest and refund were barred by limitation also. (d)  The five Show Cause Notices issued under Section 11A, were thereafter taken up for decision by the Assistant Collector and confirmed vide Order No 14/99 dated 26-2-1999. In the meantime, the Tribunal by an Order No. 1300-1301/99, dated 1-6-1999 [1999 (113) E.L.T. 697 (T)], in an appeal filed against the Commissioner (Appeals) Order 726/98, dated 6-10-1998, directed the Commissioner (Appeals) to decide the matter of Refunds afresh, along with the appeal filed by the appellants, against the confirmation of the duty demands under Section 11A in the five Show Cause No....
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....35E and not under Section 11A. In view of this conclusion, we find also that there is great merit in the submission of ld. D.R. 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 no submissions of ld. D.R. is the just way out of the situation, but is also a practical one. Under these circumstances, we set aside the Order-in-Appeal....
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....n 11B introduced, in para 87 of the reported decision in the case of Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (SC)] recorded - "87. ... .In the face of this proviso, it is idle to contend that sub-section (1) & (2) of Section 11 B do not apply to pending proceedings where the refund has not been made finally and unconditionally where duty has been refunded under the orders of the Court pending disposal of an appeal, writ or other proceedings, it would not be a case of refund finally and unconditionally..." and thereafter held that in every case of pending application of refund, the requirement is only to produce such documentary and other evidence as is sufficient to establish that the incidence of duty, refund....
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....ise Act, 1944. The refund orders not as per the said section, are required to be set aside and remanded back to the original authority for de novo decisions. (g)  Once, the original authority decided, that no refund was eligible, the erroneous payments, as made to MICO, could be ordered to be recovered, as per Section 11A demands issued to them. i.e. proceedings on 11A notice to be consequent to and subject to the findings arrived at, after the proceedings of Section 11B pending before them are concluded. (h)  If the original authority comes to a conclusion, that the refund was due, but it is required to be credited to the fund, the same should be quantified and then an appropriate amount, which has already been claimed by R....