JUDGMENT

Gowri Shankar, Member (Technical)

1. The application is for waiver of deposit of Rs. 12.82 lakhs.

2. The amount represents a refund which was sanctioned to the applicant following an order passed in 1997 of the Commissioner (Appeals), holding that the refund is not to be regulated by applying the principles of unjust enrichment under Sub-section (2) of Section 11B of the Act. The contention that this order has acquired finality and therefore the order of the Asst. Commissioner which may implement this order cannot be challenged by filing an appeal before us, appears to us to have considerable force. Doubtless the Commissioner (appeals) had applied the judgment of the Bombay High Court in Solar Pesticides v. UOI 1992 (57) ELT 201 and this decision is no longer good law having been reversed by the Supreme Court. However, it would appear prima facie that, no appeal having been filed against that order, it has become final as between parties and the subsequent reversal of the Supreme Court. However, it would appear prima facie that, no appeal having been filed against that order, it has become final as between parties and the subsequent reversal of the Supreme Court therefore may not provide assistance to the department. This is what seems to be the position after applying the ratio of the Andhra Pradesh High Court judgment in East India Sandal Oil Inds. v. Andhra Pradesh 1989 (54) STC

88.

3. We also note the existence of two decisions of the Tribunal [in CCE v. Nayan Tobacco Products 1999 (85) ECR 480; Doothat Tea Estate v. CCE 2000 (40) RLT 52] that while considering a demand under Section 11A of refund erroneously granted, the provisions of Sub-section (2) of Section 11B will not apply. To our mind these decisions require reconsideration. However at this stage, they are binding upon us.

4. Accordingly we waive deposit of the amount demanded and stay its recovery.