Per incuriam ruling does not retrospectively make earlier cess refunds erroneous or revive concluded refund orders.

A later declaration that an earlier exemption ruling was per incuriam did not retrospectively turn refunds of Education Cess and Secondary and Higher Education Cess into erroneous refunds. Recovery under Section 11A(1) of the Central Excise Act requires an erroneous refund, and refunds granted under the law as it then stood could not be reopened on that basis. Final departmental and writ orders granting refund had attained inter partes finality, so the refund notices were unsustainable and the Revenue's challenge failed.

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Issues: Whether the refunded Education Cess and Secondary and Higher Education Cess could be recovered under Section 11A(1) of the Central Excise Act, 1944 as an erroneous refund after the later declaration of the earlier exemption ruling as per incuriam, and whether the matter could be reopened notwithstanding the finality of the refund orders between the parties.

Analysis: The refund had been granted when the earlier Supreme Court ruling treating Education Cess as part of excise duty exemption was operating and the departmental and writ orders granting refund had attained finality. A subsequent declaration that the earlier ruling was per incuriam only removed its precedential value for future cases; it did not retrospectively convert refunds already made pursuant to the then-prevailing law into erroneous refunds, nor did it unsettle final inter partes determinations. Recovery under Section 11A(1) requires an erroneous refund, and the refunds here were made in accordance with law as it stood at the relevant time.

Conclusion: The recovery notices were unsustainable and the refunds could not be reopened; the challenge by the Revenue failed.

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