2007 (3) TMI 509

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....olved. The appeal is filed by M/s. Premier Electronics Ltd., Coimbatore (Pricol), against the order of the Commissioner (Appeals), Coimbatore, remanding the order-in-original of the Deputy Commissioner while deciding the appeal filed by the department in terms of Section 35E of the Central Excise Act', 44 (the Act). As per the impugned order, the Deputy Commissioner is required to examine if the sanction of the refund involved indirect unjust enrichment. The Deputy Commissioner had sanctioned the refund of an amount of Rs. 1,59,00,000/- earlier, being consequential relief allowed by the CESTAT vide its Final Order No. 14/2005, dated 17-12-04 [2005 (183) E.L.T. 65 (Tri.)]. The amount comprised Rs. 1,55,00,000/- paid during investigations int....

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....Commissioner was distinguishable and its ratio did not apply to the case on hand. Defending the impugned order, the ld. SDR submitted that the order was validly passed in view of the Apex Court's judgment in the case of Asian Paints (India) Ltd. supra. 3. We have considered the appeal and the rival submissions. In this case refund was made in 2004, of duty paid in September '98, pertaining to goods cleared during 1993 to 1998 September. The impugned duty amount was deposited during investigation. Demand for this duty had been found to be unsubstantiated by the Tribunal in its Final Order No. 14/2005 dated 17-2-04 (supra). In the following case law it was held that the refund of deposit of amounts made in such circumstances did not i....

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.... (Tri. - L.B.) (d)    Rosemount (India) Ltd. v. CCE, 1998 (99) E.L.T. 502 (Tri) (e)     Gillooram Gouri Shankar v. CCE, 2001 (137) E.L.T. 330 (Tri) In view of the consistent ratio of these decisions, the impugned order-in-appeal following Section 35(E) of the Act is liable to be set aside. 6. As rightly pointed out by the Counsel, the Tribunal in CCE v. Asian Paints Ltd., 1994 (73) E.L.T. 433 (Tri) had dealt with a case where Show Cause Notices had been issued which had proposed to demand amounts that became the subject-matter of the proceedings pursued by the department in the subsequent appeal under Section 35E. Therefore limitation under Section 11A would not have restricted the proceed....

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.... 5 above. 7. In the Circular No. 423/56/98-CX dated 22-9-1998, the CBEC had issued the following clarification : "Certain doubts have been raised regarding whether the erroneous refunds granted could he recovered by recourse to review under Section 35E of the Central Excise Act or demands under Section 11A within the statutory time limit as laid down. The S.C. in the case of CCE v. Re-rolling Mills reported in 1997 (94) E.L.T. 8 (S.C.) has inter alia held as following : "The learned Counsel for the parties do not dispute that this appeal is covered by the decision of this Court in Union of India & Ors. v. Jain Shudh Vanaspati Ltd. & Anr. 1996 (86) E.L.T. 460 (S.C.) = (1996) 10 SCC 520. In that case the Court was dealing wit....