2007 (3) TMI 251

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....e authorities since the appellant was a 100% E.O.U. Said goods were rejected and returned by the purchaser of the appellant as the same was not according to their specifications. The appellant brought back the goods and intimated the Revenue regarding such action and on reprocessing of the said goods exported the same with loss of 5%. The appellant filed a refund claim of the amount of duty involved on the goods which were reprocessed and exported by them. The adjudicating authority, in his order-in-original dated 29-10-2000 sanctioned the refund claim to the appellant on the ground that there is no dispute as regards the payment of appropriate duty, which was made by the appellant at the time of clearing the goods at first instance. Aggrie....

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.... [2005 (186) E.L.T. 277 (Kar.)]. 4. Considered the submissions made at length by both sides and perused the record. It is undisputed that the appellant had initially cleared final product on payment of appropriate rate of duty and on receiving the same back from the supplier followed all the procedures and after reprocessing, exported the same. It is also undisputed that the refund claim as filed by the appellant was passed by the adjudicating authority after considering the documents which were placed before him. The contention of the learned advocate as regards the findings of the learned Commissioner (Appeals) has strong force. Learned Commissioner (Appeals) in his order-in-appeal has held as under:- "Therefore, the lower auth....

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....red. Therefore, the department should initiate proceedings simultaneously under Section 11A within the time limit prescribed therein and also under Section 35E(2) within the time limit prescribed therein." The above said ratio of the judgment was followed by another Division Bench of the Tribunal in the case of Doothat Tea Estate Kanoi Plantation (P) Ltd. (supra) wherein the Division Bench has come to the following findings :- "A reading of the above para shows that Department is required to initiate action for recovery of the erroneous refund simultaneously under provisions of Section 11A as well as Section 35E(2). As in the instant case no appeal has been filed under the provisions of Section 35E(2) by the department against the ear....