TMI Blog2012 (4) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise vide impugned order has directed refund of the money which imply that approval for provisional attachment has not been granted - Decided against Revenue. - E/2879/2011 - Final Order No. A/457/2012- EX(BR)(PB) - Dated:- 18-4-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri Sanjay Jain, AR, for the Appellant. Shri Naveen Mullick, Advocate, for the Respondent. ORDER This is Revenue appeal against the impugned order of Commissioner (Appeals) whereby he partly allowed the appeal and directed refund of Rs. 15 lakhs deposited by the respondent during the investigation conducted by the Department. Along with the appeal, instant application for stay of refund of Rs. 15 lakhs is moved. 2. While hearing the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the refund of Rs. 15 lakhs after appropriating the penalty of Rs. 20,000/- imposed on the respondent in some other matter and Rs. 30,000/- redemption fine. 4. Shri Sanjay Jain, A.R. for Revenue submits that the order-in-appeal is not sustainable in law for the reason that on the basis of incorrect reading of judgment of the Tribunal in the matter of Florida Electrical Ind. Ltd. v. C.C.E., Delhi-I as also the judgment of the Supreme Court reported as 2005 (187) E.L.T. A33 (S.C.) vide which the appeal against the order of Tribunal was dismissed. Learned A.R. further submits that as per Section 11DDA of the Central Excise Act, 1944, the Department has a right to attach the property of the assessee in order to protect the interest of Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the sides. The facts which are not in dispute are that the appellants have deposited a sum of Rs. 15,00,000/- when the officers visited their premises and alleged removal of excisable goods without payment of duty. Though show cause notice has been issued and even personal hearing has been conducted by the adjudicating authority, no duty liability on the appellants has been determined so far. In the absence of any duty liability on the part of the appellants, the Revenue cannot retain the amount deposited by the appellants. We, therefore, set aside the impugned order and allow the appeal filed by the appellants. The Hon ble Supreme Court vide judgment reported as 2005 (187) E.L.T. A33 by dismissing the Revenue s appeal filed. In the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions under which they can exercise such powers. The revenue is not an organization which is entitled to retain money without sanction of law. Therefore, without entering into the controversy as to whether payment was voluntary or otherwise, in absence of any statutory backing, the funds recovered by the respondent authorities by way of various cheques collected by them, cannot be permitted to be retained and are required to be refunded forthwith. The learned counsel for Revenue has failed to point out a provision which empowers the authorities to collect and retain cheques in this manner. 13. Needless to state that this action, namely, of refunding the amount, will not entitle the petitioner to contend that it is absolved on merits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944, it is suffice to say that this Section confers power upon the Central Excise Officer to provisionally attach property belonging to the assessee on whom show cause notice has been served with a view to protect the interest of Revenue. This power can be exercised by the concerned officer with proper approval of the Commissioner (Appeals). In the instant case appellant has failed to show approval for attachment given by the Commissioner, on the contrary, the Commissioner Central Excise vide impugned order has directed refund of the money which imply that approval for provisional attachment has not been granted. Thus this plea is of no help to the appellant. 9. In view of the above discussion, we do not find any merit in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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