Pinaki Chandra Ghose, J. - (1.) This appeal is directed against the judgment and/or order dated May 7, 2008 passed by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata in appeal No. EDM -584/04 under Sec. 35G of the Central Excise Act, 1944 (hereinafter referred to as 'CESTAT').
(2.) The appeal was admitted on 23rd September, 2008 on the following substantial questions of law: a) When a position of law is well settled as a result of judicial pronouncement of the Hon'ble Supreme Court whether it would amount to judicial impropriety or adventurism for the learned Tribunal to ignore the settled decisions and then to pass a judicial order which is contrary thereto? b) Whether the learned Tribunal erred in law in not appreciating that the law as laid down by the Hon'ble Supreme Court of India that in case of provisional assessment if any duty is due or is to be refunded upon final assessment then that will not be guided by Sec. 11A or 11B as the case may be excepting those claim which arose as a result of any appellate proceedings against such assessment? c) Whether, the learned Tribunal erred in law in not appreciating that the order dated 20.12.2000 was the order of final assessment and vide that order it was held that an excess amount of Rs. 23,37,762.35 was deposited and as such applying the law as laid down by the Hon'ble Supreme Court of India getting refund of that excess amount the provisions of Sec. 11B will not apply and as such the bar of unjust enrichment cannot be applicable in the instant case as has been held in the case of Timken passed by the same Tribunal earlier?
(3.) The facts of the case briefly are as follows: During 1st October, 1975 and 30th September, 1983, the Appellant had been manufacturing electric fans cleared on provisional basis under Rule 9B of the erstwhile Central Excise Rules, 1944 as the jurisdictional Superintendent of Central Excise and the Assistant Commissioner raised disputes as to the calculation of duty of Central Excise to be paid by the Appellant in respect of the fans.;