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2015 (1) TMI 633 - CGOVT - Central ExciseAppropriation of rebate claim against duty demand confirmed by Commissioner of Central Excise - Recovery of dues when stay application is pending - Held that:- once the applicant made pre-deposit by way of debit of cenvat account and earlier cash deposit of ₹ 25.00 lakhs, it was not open for adjudicating authority to decide the eligibility of such payment on his own. If the adjudicating authority was not satisfied with the mode of the deposit, he could have waited for the directions of CESTAT. Subsequently, vide order dated 13.12.2012, the CESTAT directed the applicant to pay the pre-deposit in cash in 8 weeks upto 18.01.2013. However, the CESTAT has not vacated the stay. Applicant has claimed to have deposited the said amount on 31.12.12. Recovery proceedings cannot be initiated during the pendency of stay application. As such, original authority has erred in ordering recovery of said amount ignoring the factual position as discussed in above para. Government finds that stay against order of Commissioner of Central Excise was still in force at the time of appropriation of sanctioned rebate claims vide impugned Order-in-Original. Hence, the order of appropriation by original authority is not legal and proper and liable to be set aside on this account alone. In view of above position, Government sets aside impugned Order-in-Appeal and directs that said sanctioned rebate claim may be paid to the applicant provided he has complied with the CESTAT order - Decided conditionally in favour of assessee.
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