IN THE HIGH COURT OF BOMBAY AT GOA EXCISE APPEAL NO. 5 OF 2009 THE COMMISSIONER (C. EX AND S.T) ... Appellant Versus M/S. NESTLE INDIA LIMITED ... Respondent Ms. Susan Linhares, Central Govt. Standing Counsel for the appellant. Mr. Gajendra Jain and Miss Priyanka Kamat, Advocates for respondent No. 1. Coram:- NARESH H. PATIL & U. D. SALVI, JJ. Date:- 1st February, 2010 P.C. Heard learned Counsel for the appellant and respondent No.1. By this appeal, the appellant has challenged the impugned Order No.A/692-696/08/SMB/C-II dated 12.9.2009, passed by the CESTAT. We have perused the impugned order. The Tribunal has placed reliance on the Judgment in the case of Re-Rolling Mills vs. Collector of C.Ex., reported in 1989 (43) E.L.T. 115 (Tribunal) and on a Judgment of Bombay High Court in the case of Bajaj Auto Limited vs. Union of India, reported in 2003(151) E.L.T. 23 (Bom). 2. The learned Counsel for the respondent has placed reliance on para 19 of the Judgment in the case of Bajaj Auto Limited vs. Union of India (supra). We would reproduce para 19 of the said Judgment, which reads thus : " 19. Even assuming, for any reason, the Respondents could consider the refund to be erroneous then and in that event the proper course open to the Respondents was to issue notice under Section 11A of the Excise Act within six months from the relevant date and then file application under Section 35E(2) of the Excise Act. However, in this case, the Respondents, without issuing notice under Section 11A, have only filed application under Section 35E(2) of the Excise Act. The refund was granted with the knowledge that the plea of unjust enrichment was not available at the relevant time and if the Respondents even after granting refund considered the refund to be erroneous on account of unjust enrichment and wanted to keep the issue alive, then they ought to have issued notice under Section 11A of the Excise Act. Failure to issue such notice is fatal and the impugned notice issued beyond the period of 6 months under Section 11A is liable to be held to be bad in law." 3. Admittedly, in the present case, show cause notice was not issued by the Revenue. Failure to issue a show cause notice is fatal and, therefore, the proceedings initiated by the Revenue are bad in law. There is no error apparent. We do not find any question of law to be considered by this Court, as raised by the Revenue. No interference is called for. The appeal stands dismissed. NARESH H. PATIL, J. U. D. SALVI, J. ssm.