1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi CENTRAL EXCISE APPEAL NO. 45 OF 2010. Commissioner of Central Excise, Nasik. ..Appellant. v/s. M/s. Jain Vanguard Polybutlene Ltd. & Anr...Respondents. .... Mr. R.V. Desai, Senior Counsel, a/w. Mr. R.B. Pardeshi, for Appellant. Mr. M.H. Patil, for Respondents. .... CORAM : V.C. DAGA & S.J. KATHAWALLA, JJ. DATE : 28TH JUNE 2010. P.C. Perused Appeal. Heard Learned Senior Counsel appearing for the Appellant-Revenue and Mr. Patil appearing for the Respondents. 2. The Tribunal has relied upon the judgment of the High Court of Karnataka, in the case of Union of India vs. Slovak India Trading Co. Pvt. Ltd., 2006 (201) ELT 559 (Kar.), wherein it is held that :- “5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17, against the Revenue and in favour of the assessee.” 2 3. The above judgment was subject matter of Special Leave Petition. The Special Leave Petition had been dismissed by a reasoned order. In the said order, the statement of the Learned Additional Solicitor General was recorded by the Apex Court, who had conceded before the Apex Court that the various judgments relied upon by the Karnataka High Court were not appealed against by the Revenue. Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. No concession was given with regard to the correctness of the judgment of Karnataka High Court. This judgment was confirmed by the Apex Court on its own merits for the reasons stated therein. The Tribunal was wrong in observing that the S.L.P. was dismissed because the Learned Additional Solicitor General had conceded the correctness of the High Court’s judgment. What was conceded by the the Learned Additional Solicitor General was that the various judgments relied upon by the Court were not appealed against and not the correctness of the judgment of Karnataka High Court. The Apex Court in Birla Corporation Ltd. vs. Commissioner of Central Excise, 2005 (186) ELT 266(SC) held that when question arising for consideration on facts almost identical to previous case, Revenue cannot be allowed to take different view. Following this principle, we cannot take any other view other than the one approved by the Apex Court, which came before it from the Karnataka High Court. 4. In the above view of this matter, Appeal is dismissed in limine with no order as to costs. [ S.J. KATHAWALLA, J. ] [V.C. DAGA, J.]