2009 (1) TMI 247

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....llants had imported a consignment each of 'wooden match splints' in the year 2005 and paid the countervailing duty @ 16% ad valorem oblivious of the fact that the goods imported were exempt from CVD. The wooden match splints imported were captively consumed in the manufacture and clearance of its final products safety matches. Later on, they applied for and received cash refund of the excess paid CVD under separate orders passed by the original authority. The impugned order was passed in appeals filed by the Revenue against the orders sanctioning refund. Appeals were filed following orders in review under passed under sub-section (2) of Section 129D of the Customs Act, 1962 by the Commissioner of Customs. In the impugned order, the Commissi....

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....erms of Notification No. 10/2003-C.E., dated 1-3-2003 read with Notification No. 1/2005-C.E., dated 24-7-2005. The excess paid amounts of duty were refunded by the Assistant Commissioner (Refunds) after examining whether unjust enrichment was involved in granting the refunds. He went by the certificates issued by Chartered Accountants which had stated that the amounts involved had been accounted in the Balance Sheets of the company as "Duty receivable from Customs". The impugned order demanding amounts of duty refunded has been passed pursuant to appeals filed by the Revenue following review proceedings under Section 129(2) of the Customs Act. The appellants have argued that the impugned orders are not sustainable as no Show Cause Notice wa....

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....unal). In the Panyam Cements and Mineral industries Ltd. case, the Tribunal had observed as follows:- "To recover the amount already paid to the appellant, only course open to the Department was to issue a show cause notice under Section 11A of the Central Excise Act for recovery of the amount erroneously refunded to the appellant and simultaneously filing the appeal before the Appellate Authority, challenging the order of the Assistant Commissioner sanctioning the refund claim. Since the show cause notice for recovery of amount al ready paid to the appellant has not been issued within time under Section 11A, therefore, the department cannot recover the said amount even if they succeed on merit." Section 28 of the Act is pari materia ....