Per P.G. Chacko : All these appeals of the department are against a common order passed by the Collector of Customs (Appeals) in favour of the respondents.

2. The appellant is represented by Ld. SDR. No representation for the respondents despite notice.

3. We have examined the records and heard the DR. The original authority had sanctioned refund of customs duty to the respondents in respect of imported goods which were found short upon clearance at Customs. The orders passed by the original authority sanctioning refund to the various parties were reviewed by the Collector of Customs concerned under Section 129D of the Customs Act, 1962 and, pursuant to the review, appeals were preferred by the department to the Collector (Appeals). All those appeals were rejected by the Collector (Appeals) on a legal ground. The point of law considered by Ld. Collector (Appeals) was whether, where a refund of customs duty granted by the Asst. Collector was subsequently found to be erroneous, it was open to the department to initiate proceedings under Section 28 of the Customs Act for recovery of the amount. On this point, he held that Section 28 was the only remedy legally available to the department for recovery of an amount of customs duty erroneously refunded by the Asst. Collector. This view was taken by the lower appellate authority, relying on the Tribunal's decision in the case of Collector Vs. Universal Radiators Ltd., reported in 1988 (37) E.L.T. 222. In the present appeals, it is contended to the effect that the decision in Universal Radiators (Supra) is not correct in view of the Tribunal's later decision in the case of Shree Digvijay Cement Company Ltd. Vs. Collector reported in 1991 (52) E.L.T. 631. Apart from reiterating the above grounds, Ld. SDR submits today that both the above decisions of the Tribunal were overruled by a Larger Bench in Asian Paints (India) Ltd. Vs. Collector reported in 1994 (3) RLT 426 (CEGAT-LB)=RLT (LB-CEGAT)-711=1994 (73) E.L.T. 433. In the case considered by the Larger Bench, the original authority had allowed a part of the assessee's claim regarding valuation of the goods and had rejected the rest of their claim. Certain cash discount, dealer's bonus and commission were held to be includible in the assessable value of the goods. At the same time, certain other discounts and transit insurance were allowed to be excluded from the assessable value. Against the latter part of the original authority's order, the Collector passed an order of review under Section 35E and directed the Asst. Collector to file an appeal with the Collector (Appeals). The question considered by the Larger Bench was whether, irrespective of the remedy pursued under Section 35E, the department could recover the duty from the assessee under Section 11A. It was held that the two provisions were independent of each other and it was open to the department to proceed to recover the duty from the assessee on the basis of the results of the appeal filed in pursuance of the order of review passed under Section 35E. Ld. SDR points out that this view of the Larger Bench has been affirmed by the Supreme Court in the judgment reported in 2002 (50) RLT 873 (SC)=2002 (142) E.L.T. 522 (S.C.). The Supreme Court's judgment reads as under:-

"We have read the judgments of the Larger Bench of the Customs, Excise and Gold (Control) Appellate Tribunal, which are impugned in these appeals. We are of the view that the judgments viewed Section 35E and 11A of the Central Excise Act in the proper perspective. The two sections operate in different fields and are invoked for different purposes. Different time limits are, therefore, set out therein. We do not accept the contention that recovery of excise duty cannot be made pursuant to an appeal filed after invoking the provisions of Section 35E if the time limit provided in Section 11A has expired. To so read the provisions would be to render Section 35E virtually ineffective, which would be impermissible.

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