Per P.G. Chacko :

These appeals are by the department, aggrieved by the sanction of two refund claims of the respondents by the lower appellate authority. After examining the records, I get the following facts. In Order-in-Appeal No. 202/ 96 dated 17.6.96, the Commissioner (Appeals) held the aforesaid refund claims ' to be admissible to the assessee subject to Section 11B of the Central Excise Act, 1944. It was not appealed against by the department. Pursuant to the said Order-in-Appeal, the Assistant Commissioner passed Order dated 27.5.02 rejecting the refund claims as barred by unjust enrichment. Appeal preferred by the assessee against the said order of the Assistant Commissioner was allowed by the Commissioner (Appeals) by Order-in-Appeal No. 112/2003 dated 31.3.2003 holding that, in the facts of the case, the question of unjust enrichment did not arise. Consequently the original authority passed two orders, No. 79/03 dated 25.6.03 and No. 80/03 dated 26.6.03 allowing refund of a total amount of duty of over Rs. 4.3 lakhs to the assessee. Order-in-Appeal No. 112/03 ibid and the consequential orders of the original authority were also accepted by the department.

2. Subsequently, in March/May 2004, the department issued two show-cause notices alleging that the above refunds were erroneous on account of time-bar and proposing that the amounts be recovered under Section 11A of the Central Excise Act. This proposal was contested by the assessee, but confirmed by the original authority. Against the decision of the original authority, the party preferred appeal to the Commissioner (Appeals) and the latter passed Orders-in-Appeal Nos. 189 190/04 setting aside the demand of duty raised by the original authority. In the result, the assessee became eligible for refund of duty once again. Hence, the present appeals of the department.

3. It is the case of the Department that it was open to them to demand the entire amount of duty erroneously refunded and, therefore, the show-cause notices issued in March/May 2004 under Section 11A were in order. According to them, this course of action was not in any way affected by the provision (Section 35E) for review of the earlier orders of the appellate Commissioner (Order-in-Appeal No. 202/96 and Order-in-Appeal No. 112/03). In other words, the remedy under Section 11A is independent of the one under Section 35E (2) of the Act. This case has been reiterated today by the learned SDR and she has relied on the judgment of the Hon'ble Supreme Court in Union of India Vs. Jain Shudh Vanaspati Ltd. reported in 1996 (16) RLT 419 (SC)=1996 (86) ELT 460 (SC), wherein it was held that show-cause notice could be issued under Section 28 of the Customs Act, 1962 for demand of duty without recourse to the revisional remedy under Section 130 of the Act. She has also referred to the apex Court's judgment in Asian Paints (India) Ltd. Vs. CCE [reported in 2002 (50) RLT 873 (SC)] wherein Section 11A and Section 35E were held to operate in different fields and therefore excise duty could be recovered under Section 11A while the appeal filed by the department after the process of review under Section 35E was pending. Learned SDR has also relied on the judgment in CCE Bhubaneswar Vs. Re-Rolling Mills reported in 1997 (22) RLT 8 (SC)=1997 (94) ELT 8 (SC) wherein the ratio of the judgment in Jain Shudh Vanaspati Ltd. (supra) was applied to the Central" Excise case in hand on account of the parity of the provisions of Section 11A of the Central Excise Act and Section 28 of the Customs Act, 1962.

4. Learned Counsel for the respondents has claimed that the case law cited by the learned SDR is not applicable to the facts of this case.

5. After giving careful consideration to the submissions, I find that, as early as in 1996, the appellate Commissioner vide Order-in-Appeal No. 202/ 96 had held the subject refund claims to be admissible subject to Section 11B of the Act. The appellate authority obviously wanted the origina