CEA No.92 of 2009 (O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.92 of 2009 (O&M) Date of Order: 30.11.2009 Commissioner of Central Excise Delhi ...Appellant Versus M/s Kelvinator of India Ltd ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.S. Sandhu, Advocate for the appellant. 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR,J Instant appeal filed under Section 35(G) of the Central Excise Act, 1944 (for brevity “the Act”) challenges order dated 15.7.2008 passed by the Custom, Excise & Service Tax Appellate Tribunal, New Delhi Bench. It is undisputed that on 7.8.1998 (Annexure A.1), the Tribunal while following the judgment of the Bombay High Court in the case of Solar Pesticides v. CCE 1994 ECR-7 (Bombay) has allowed the appeal holding that the bar of unjust enrichment did not apply to cases of captive consumption. The aforesaid order attained finality. Even the refund amount was paid to the dealer-respondent. However, Hon'ble the Supreme CEA No.92 of 2009 (O&M) #2# Court reversed the view taken by the Bombay High Court on an appeal filed by Union of India, which is reported as Union of India v. Solar Pesticides Privated Ltd 2000 (116) ELT 401 (SC). Inspired by the aforesaid view taken by Hon'ble the Supreme Court, the appellant issued a show cause notice dated 8.6.2000(Annexure A.3) for recovery of the refund amount on the ground that captive consumption also amounted to undue enrichment and proceedings under Section 11-A of the Act were initiated. The aforesaid recovery proceedings eventually reached the Tribunal. The Tribunal vide impugned order dated 15.7.2008 has rightly taken the view that once order dated 24.8.1998 (Annexure A.1) has attained the finality and has not been set aside in appeal, the parallel proceedings under Section 11-A of the Act cannot again be initiated. The order sanctioning refund could not be successfully challenged unless the earlier order of the Tribunal dated 7.8.1998 was set aside. Accordingly, the proceedings were set aside and the appeal of the dealer-respondent was allowed. Having heard learned counsel, we do not find any ground to interfere with the view taken by the Tribunal. No question of law much less a substantial question of law would arise for determination of this court. Even no such question has been claimed by Shri Sandhu, learned counsel for the appellant. Dismissed. ( M.M. KUMAR ) JUDGE November 30, 2009 ( JASWANT SINGH ) manoj JUDGE