KELVINATOR OF INDIA Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Heard both sides.

(2.) Shri Pradeep Jain, learned Advocate, pleaded that the refund was granted to the appellants on 9 -12 -1999 on the direction of the Final Order No. 581/98 -C dated 7 -8 -1998. However, without challenging the final order passed by the Tribunal, the Assistant Commissioner, Faridabad on 8 -6 -2000 issued show cause notice to the appellants for recovery of the amount of refund already sanctioned and paid to the appellants on the ground that the Supreme Court in the case of Union of India v. Solar Pesticide (P) Ltd.- 2000 (116) E.L.T. 401 has set aside the earlier order passed by the Bombay High Court in the case of Solar Pesticide (P) Ltd. v. Union of India - 1992 (57) E.L.T. 201. Shri Jain pleaded that the refund was granted to the appellants in implementation of the final order of the Tribunal. Since this order has not been challenged, therefore, it is a final order and action taken consequent to this, cannot be modified. He relied on the decision of the Supreme Court in the case of Hindustan Metal Pressing Works v. CCL, Pane [2003 (153) E.L.T. 11 (S.C.) - 2003 (110) ECR 657] where it was held that past finalized cases could not be reopened by holding that the refund was given erroneously as there was unjust enrichment.

(3.) Shri S. Bhatnagar, learned JDR reiterated the arguments of the Commissioner (Appeals).