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. v. UOI, 1997 (5) SCC 536 and Sahakarikhand Udyog Mandai Ltd., v. CCE, 2005 (3) SCC 738?

.2. Mr.Udayakumar, learned Standing Counsel for the appellant contended that the order of the appellate Tribunal is erroneous in law and against the ratio of the Supreme Court judgment in the case of Mafatlal Industries Ltd. v. Union of India, 1997 (89) ELT 247 in

.which the Supreme Court has enunciated the law relating to claim of refund whether made under the provisions of the Act as contemplated in proposition (i) or in a suit or writ petition in the situation contemplated by proposition (ii) can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person or persons. His refund claim shall be allowed or decreed only when he establishes that he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation, but is subject to the above requirement, where the burden of the duty has been passed.

3. We heard the arguments of the counsel on either side. We are not able to either accept the arguments of the counsel for the appellant or approve the order of the Commissioner (Appeals) which is the subject matter of order of CESTAT, the correctness of which is now assailed.

.4. Let us state the relevant facts of the case. The facts of the case are:

.The respondent textile Mills filed a bill of entry No.354328 dated 04.01.2005 for the import of one number of Benninger High Speed Warping machine, claiming concessional rate of duty under Sl.No.251 of Notification No.21/2002-Cus., dated 01.03.2002, as amended. The bill of entry was assessed at basic customs duty at 20%, countervailing duty at 16%, cess at 0.05%, service tax at 2% and educational cess at 2% for the total value of Rs.41,44,632/-. The respondent paid the amount under protest and cleared the goods. As against the assessment, the respondent filed an appeal to the Commissioner (Appeals), who by his order dated 29.03.2005 vide Order in Appeal No.61 of 2005 found that the machinery imported by the respondent was entitled to the benefit of concessional rate of duty as per the Notification No.21/2002 and allowed the appeal with consequential relief by setting aside the assessment to the value of Rs.41,44,632/-. In pursuance of the said order, the respondent filed a refund claim in a sum of Rs.36,13,700/- for a differential excess duty paid by him, before the Assistant Commissioner (Refund) in O.I.O.No.220/2005-06, who by his order dated 08.07.2005 sanctioned the said amount and the same was paid back to the respondent.

.5. Thereupon, the Assistant Collector of Customs (Refund) filed an appeal aga