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2015 (6) TMI 1056 - AT - Central ExciseEligibility of refund - recovery proceedings - Held that:- The admitted fact is that the Original Authority found that the refund is correctly eligible to the appellant. However, he appropriated the amount against the confirmed demands without due notice for recovery to the appellant. It is a fact that all the confirmed demands were taken up on appeal and were pending with higher appellate Forum with a request for stay of recovery. Before any decision was taken on such stay/appeal coercive action of recovery of such due was taken by the original authority. The appellant was not put to notice. On such coercive recovery Tribunal in Anna Petrochem Pvt. Ltd. (2009 (5) TMI 716 - CESTAT, NEW DELHI) and Jay Kay Synthetics (2001 (9) TMI 208 - CEGAT, NEW DELHI ) held that show cause notice/personal hearing is required before such appropriation. In Voltas Ltd. [2006 (5) TMI 232 - CESTAT, BANGALORE ], the Tribunal examined the scope and applicability of Section 11. It was held that sums due to Government become arrears only after finality is reached on such demand. The Appellate Authority also confirmed such appropriation without examining the legality of action of recovery proceedings. However, as shown now by the appellant, none of the confirmed demands survive as on date. This being not disputed by Revenue also. In any case, in view of non-existence of any confirmed demand as on date, the appellant is rightly eligible for full payment of refund as originally sanctioned by the jurisdictional Asstt. Commissioner with applicable interest. - Decided in favour of assessee.
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