Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2019 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 73 - AT - Central ExciseRefund of appropriated amount - Amount was recovered against CENVAT credit, but finally the demand was set aside - case of Revenue is that since the appellant has not challenged the appropriation and there was no direction in the remand order for sanctioning and returning the refund amount therefore that appropriation has become final and the appellant cannot claim the refund of the same - HELD THAT:- Once the demand has been set aside on merits then the amount appropriated by the original authority at the stage when the appeal of the appellant was pending before the Commissioner is not tenable in law - Further, once the demand has been set aside, the amount appropriated by the Department is liable to be refunded to the appellants and there is no justification for retaining the said amount by the Department - Further, when unlawful demand has been set aside, the Department does not have any authority to retain the amount appropriated towards the said unlawful demand. The decision of the Tribunal in the case of ISPAT TRADERS VERSUS COMMISSIONER OF CUSTOMS, JAMNAGAR [2010 (9) TMI 346 - CESTAT, AHMEDABAD] is very much applicable in the present case wherein the Tribunal has held that appropriation of the amount out of the refund amount payable in cash towards the demand confirmed in the said Order-in-Original is only a pre-deposit and once the said Order-in-Original has been set aside by the first Appellate Authority, the adjudicating authority in all fairness ought to have sanctioned the refund of the amount appropriated. Refund allowed - appeal allowed - decided in favor of appellant.
|