ORDER
A.C.C. Unni, Member (J)
1. This departmental appeal arises from the prder-in-appeal dated 15-2-1990 passed by Collector (Appeals), Indore by which the Collector (Appeals) set aside the order-in-original of the Asstt. Collector and sanctioned a refund of amount of Rs. 4,82,593.69 in favour of the Respondents.
2. Brief facts relating to the case are : By a Show Cause Notice dated 22-9-1992 Asstt. Collector called upon the respondent in the present appeal to show cause as to why an amount of Rs. 4,82,593.69 refunded to them under a previous adjudication order dated 15-2-1990 should not be recovered. The said amount represented the refund of differential duty granted to the respondent on the ground that the effective rate of duty payable by the respondents on their product (Glucose) was 10 per cent whereas they had paid at the rate of 15 per cent for clearances made during the period 1-7-1990 to 16-2-1991. By order-in-original dated 9-10-1991 Asstt. Collector held that the refund was bad in law and confirmed recovery of refund. By the impugned order Collector (Appeals) relying on the Supreme Court decisions in Western India Wire Industries v. CCE 1990 (48) E.L.T. A63 and Polymer and Chemical v. CCE reported in 1993 (65) E.L.T. A151 and the Tribunal decision in Digvijay Cement v. CCE reported in 1991 (51) E.L.T. 631 reversed the said order-in-original.
3. In the grounds-of-appeal filed by the Department it has been contended that the Collector (Appeals) had erred in setting aside the adjudication order and in holding that the SCN and subsequent order of Assistant Collector would be tentamount to a review of his earlier order. Arguing in support of the appeal Shri D.K. Nayyar, JDR contended that under Section 11 A, it was competent for the proper officer to issue a show cause notice where any duty had been erroneously refunded or where a refund has been erroneously made. Since in the instant case the show cause notice had been issued for the recovery of refund of amount made erroneously in disregard of the provision relating to unjust enrichment,’ the Assistant Collector was very much within his powers to issue the show cause notice under Section 11 A. JDR relied on the following decisions in support of his contentions :
Universal Radiator Ltd. v. CCE 1988 (37) E.L.T. 222; CCE v. Re-rolling Mills 1989 (43) E.L.T. 115 and Gurupriya Tele Auto Pvt. Ltd. v. CCE 1992 (58) E.L.T. 361 (Karnataka High Court). He submitted that Section 35E and Section 11A are independent provisions and are available to different authorities so that Revenue had both the options open. Under Section 11A where a mistake is detected the Assistant Collector himself could issue a Show Cause Notice whereas Section 35E had empowered the Collector to take action to rectify the mistake of a lower Adjudicating Authority.
4. Shri A.C. Jain, Advocate appearing on behalf of the respondents strongly urged that there was no question of erroneous refund on the part of the Assistant Collector as on the date of refund the provision relating to unjust enrichment had not been enacted. Even otherwise, on the question of the competence of Asstt. Collector to issue notice for readjudicating a matter already adjudicated by him, he submitted that Asstt. Collector having not been clothed with the power of reviewing his own order, the issue a fresh Show Cause Notice under Section 11A was clearly beyond his powers. He relied on the following decisions:
Akola Oil Industries v. CCE 1990 (53) E.L.T. 136; CCE, Madras v. Pace 1994 (69) E.L.T. 766 and Collector v. Universal Radiators, 1988 (37) E.L.T. 222]. He also referred to three decisions referred to in the order of Collector (Appeals) by which the Supreme Court in two of the aforesaid cases had upheld the Tribunal decisions holding that the Asstt. Collector did not have the power of review of his own order.
5. I have .considered the submissions made on both sides. The issue that has been raised in the present appeal is whether an Adjudicating Officer is competent to issue a Show Cause Notice for recovery of an amount of refund which had been the subject matter of a previous adjudication by him. It is no doubt true that Section 11A(1) empowers the proper officer to issue a Show Cause Notice for recovery of, among other tilings, refund of amounts erroneously made. The remedy in such a situation is for the Department or the Collector, who is a higher authority, to call for and examine whether the adjudicating authority subordinate to him has passed any decision or order which is not legal or proper and direct such authority to apply to the Collector (Appeals) determination of such points arising out of the decision under Section 35E(2) of the Central Excise Act. I find from the various decisions cited on behalf of the Respondent herein that the Supreme Court as well as the Tribunal have held that an Adjudicating Officer does not have the power to review his own order. The cases cited on behalf of the Department do not support the proposition that an Adjudicating Officer is competent to review his own order. In Sree Digvijay Cement Co. Ltd. v. CCE 1991 (52) E.L.T. 631 the Tribunal had held that an order of erroneous refund can be set aside only by following the procedure under Section 35E(2) of the Act. The Apex Court had also upheld the Tribunal order holding that once a refund claim has been allowed by the Asstt. Collector, the only course open for the Revenue was to settle the claim of the assessee after scrutiny of the correctness of the duty payment rather than to reopen the case by a Show Cause Notice by the Asstt. Collector 1993 (65) E.L.T. A151 – Collector v. Polymer and Allied Chemicals]. Similarly, in CCE v. Western India Wire Industries 1990 (48) E.L.T. A63 the Apex Court dismissed the Revenue appeal and upheld the Tribunal order holding that the Asstt. Collector cannot review his own order.
6. In view of the above discussion I find no merit in the present appeal. Since I hold that the impugned order suffers from no legal infirmity, I do not find it necessary to go into the merits of the other contention raised on behalf of the Department about unjust enrichment. Appeal is accordingly rejected.