2002 (4) TMI 341

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....r Singh, learned Advocate for the Appellants and Shri R.C. Sankhla, learned DR for the Revenue. 3. Briefly stated the facts are that the Appellants manufacture paper based decorative laminated sheets which were classified by them under sub-heading 4818.90 of the Schedule to the Central Excise Tariff Act. The Department, however, classified the same under sub-heading 3920.31 of the Tariff. The Tribunal vide Order Nos. 552-575/89, dated 20-9-89 decided the classification of the impugned product in favour of the Appellants as a consequent of which they filed a Refund Claim of the duty paid by them with the Department. In the meantime the Revenue went in Appeal against the Tribunal in the Supreme Court which did not grant any stay. 4....

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.... The main contention of the learned Advocate for the Appellants is that the Adjudication Order dated 2-4-90 by which the refund was granted to them has neither being appealed against nor reviewed under Section 35E(2) nor reversed by any other Court of jurisdiction; that no simultaneous proceedings have been initiated under Section 35E(2) of the Central Excise Act other than the recovery proceeding under Section 11A; that accordingly the present proceedings are without jurisdiction and are not maintainable. He relied upon the decision in the case of Doothat Tea Estate Kanoi Plantation Pvt. Ltd. v. CCE, Shillong, 2001 (135) E.L.T. 386 (Tri.) wherein it was held that the Department is required to initiate action for recovery of erroneous ....

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....ded the classification of the product in their favour. Once the said decision of the Tribunal is set aside by the Supreme Court on appeal filed by the Revenue, the duty refunded to the Appellants becomes due to Revenue and the Appellants are duty bound to pay back the same amount to the Revenue. In such a situation provisions of Section 35E(2) of the Central Excise Act are not attracted. It has been held by the Supreme Court in the case of Kunhayammed v. State of Kerala, 2001 (129) E.L.T. 11 (S.C.) that "when a decree or order passed by inferior Court, Tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, neverth....