2007 (8) TMI 504

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....cate, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of. Accordingly, after dispensing with pre-deposit, we take up the appeal. 2. This appeal of the assessee is arising before us in second round....

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....tice was issued under Section 28(1) of the Customs Act by the department for recovery of the amount from the assessee on any ground whatsoever. On 19-4-2006, however, the Commissioner reviewed the Assistant Commissioner's order under Section 129D of the Customs Act and, pursuant thereto, an appeal was filed with the Commissioner (Appeals) against the Assistant Commissioner's refund order. The Comm....

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....t view taken by this Tribunal on the question whether it was open to the department to invoke Section 129D of the Customs Act/Section 35E of the Central Excise Act for recovery of an amount of duty already refunded to an assessee, without recourse to Section 28(1) of the Customs Act/Section 11A of the Central Excise Act, learned Commissioner (Appeals) proceeded on the premise that the issue to be ....

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....al. In our remand order, we had taken a view on Section 28 v. Section 129D. After distinguishing Asian Paints (supra), we held that, where any amount of duty had already been refunded to an assessee under Section 27 of the Customs Act, it was not open to the Revenue on the ground of erroneous refund to proceed for recovery of the amount from them under Section 129D of the Act after expiry of the p....