K. Raviraja Pandian, J.

This appeal is filed by the Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin against the Final Order No.956 of 2007 dated 02.08.2007 passed by the CESTAT, Chennai by formulating the following questions of law:

1. Whether the Tribunals decision that the amount erroneously refunded could not be recovered by filing an appeal under section 129D of the Customs Act, 1962 unless a demand notice was issued under section 28(1) be correct in law, when the Supreme Court in the case of Asian Paints (India) Ltd. v. CCE, Mumbai, 2002 (142) ELT 522 had held to the effect that an order issued under section 35E of the Act would be equally sustainable in law for recovering dues of excise duty?

2. Whether unjust enrichment by an individual company is permissible in law only for the reason that a demand notice under section 28(1) of the Customs Act was not issued for recovery of erroneous refund when the Department followed the appellate remedy available under section 129D of the Customs Act, 1962 for recovery of erroneous refund, without considering the settled law emerging from the apex Courts decision in the case of Mafatlal Industries Ltd.