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32 EXCISE LAW TIMES [ Vol. 372

basis of unconnected and subsequent Supreme Court judgment was without ju-
risdiction and ought to be dropped.
8. Respondent No. 2 on 30-11-2017 held the petitioner liable for refund
of the amount being unjust enrichment, since petitioner was not able to prove
that burden of duty was not passed on by dealers/distributors to their custom-
ers.
9. Counsel for the petitioner submitted that revenue did not file any
appeal against finalisation of provisional assessment order dated 24-7-2015
wherein it was held that unjust enrichment is inapplicable. Further, no appeal
was preferred against order dated 5-11-2015, whereby refund of excess excise
duty was paid to petitioner, and thus, it attained finality. It is contended that by
issuing show cause notice dated 17-8-2017 seeking to reopen the proceedings
and, thereafter, by passing order impugned dated 30-11-2017, the respondent
authorities had committed gross illegality to question the correctness of earlier
orders which had become final. Reliance placed by department on the decision of
the Apex Court in case of Union of India v. Jain Shudh Vanaspati, 1996 (86) E.L.T.
460 (SC) cannot be applied in the present case, as said case relates to fraud which
is not alleged in the present case. It is further contended that Section 35E of Ex-
cise Act, provides that power of review is available with the Commissioner un-
der which it can be directed that an appeal against any order be filed by depart-
ment. As orders dated 24-7-2015 and 5-11-2015 whereby provisional orders were
finalised and refund was granted, also qualifies as order passed under the Act,
and respondents were entitled to file an appeal against such orders. In absence of
any appeal, these orders attained finality and cannot be reopened by starting col-
lateral proceedings by issuance of show cause notice under Section 11A of Excise
Act, as provisions of Section 11A applies inter alia in case when there is a grant of
“erroneous refund”, while in the present case refund was granted in accordance
with orders passed which attained finality and cannot be termed as erroneous to
invoke Section 11 A.
10. Reliance has been placed upon a judgment of Madras High Court in
case of Eveready Industries Ltd. v. CESTAT, Chennai - 2016 (337) E.L.T. 189 (Mad.
HC), wherein it has been held that once refund is allowed, then parallel proceed-
ings by way of issuance of show cause notice under Section 11A of the Act, can
not be initiated. Relevant Paras 48 and 49 are extracted hereasunder :-
“48. In other words, two valuable rights, one in the form of right of appeal
and another in the form of order of refund, are now sought to be taken
away indirectly by taking recourse to Section 11A. What cannot be done di-
rectly cannot be done indirectly also.
49. Insofar as the decision of the Andhra Pradesh High Court is con-
cerned, one observation made in Paragraph 16 of the said decision is of
prime importance. In Paragraph 16, the Andhra Pradesh High Court has
made it clear, after analysing Sections 11A and 11B that there is an adjudi-
cation process involved in the processing of applications made under Sec-
tions 11A and 11B. The Andhra Pradesh High Court held that orders
passed under Sections 11A and 11B are appealable. Therefore, the decision
of the Andhra Pradesh High Court, especially the observation in Paragraph
16, should be made use of by the assessee to contend that since there was
no appeal against the order under Section 11B, the Department cannot take
recourse to Section 11A.”

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