9911796707
TMI Blog2010 (9) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional Assistant Commissioner of Central Excise Division, New Delhi. 2. Briefly stated, M/s. Sunrise Food Products, New Delhi filed eleven refund claims seeking rebate for the aforesaid amounts under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 32/08-C.E. (N.T.), dated 28-8-2008 for the goods manufactured and exported on payment of Central Excise duty paid under Rule 14 of the Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 under Section 3A of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). The jurisdictional Range Officer had reported that a confirmed demand of duty amounting to Rs. 3,62,32,000/- and penalty amounting to Rs. 4,77,32,000/- wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the impugned orders, the appellants filed the appeal before Commissioner (Appeals) on the grounds that their appeal as well as application for extension of stay against Order-in-Original No. 11/2008 were pending before the Hon'ble CESTAT and hence, the said order-in-original not having attained finality, it was not open to the adjudicating authority to adjust the refund amounts towards the demand adjudged vide Order-in-Original No. 11/2008; that this action amounted to taking coercive action for recovery of adjudged dues during the pendency of their stay application before the Hon'ble CESTAT which was not legally permissible; and that the amount of refund or abatement cannot be adjusted against another demand for which appeal was pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) has referred to Board Circular No. 354/70/97-CX., dated 13-11-1997 which prescribes the procedure for speedy acceptance of proof of exports in respect of goods exported through Inland Container Deports/Customs Freight Station. 4.3 In para 2.3 of this circular dated 13-11-1997, it is mentioned that the Mates receipts may be accepted for grant of rebate claim if TR copy of ARE-1 is not received within 30 days. Basically, this circular prescribes the procedure for acceptance of proof of export in respect of goods exported through E.C.D./C.F.S. and also directs that if the B.R.C. is not received within 160 days of the date of sanction of rebate claim, action for recovery of rebate shall be initiated. This circular is not relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4.6 As per the Hon'ble Supreme Court judgment reported in 2005 (180) E.L.T. 434 (S.C.) in the case of Commissioner of Cus. & Central Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd. where in it was held that the Tribunal can grant stay for a period exceeding 6 months on good cause and only on satisfaction that matter could not be heard and disposed of by reasons of fault of Tribunal for reasons not attributable to assessee. However, in this case the fault lies at the doorsteps of the assessee himself because they did not file any application before the Hon'ble Tribunal for extension of stay beyond 28-2-2009 when the initial stay of 6 months had expired. They filed the application on 22-6-2009 and, therefore, the action of the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent. The delay in filing the application for extension of stay is not the cause for delay in hearing the appeal by Hon'ble CESTAT. Moreover, this ground that there was delay in filing of application for extension of stay ought to have been taken up by the Department before Hon'ble CESTAT at the time of hearing of the application for extension of stay. However once stay has been granted by Hon'ble CESTAT, no measures can be taken for recovery of the dues and the rebate claims ought to be released to the respondent immediately together with interest calculated at the appropriate rate. 6. Personal hearing scheduled in this case on 17-8-2010 was attended by Shri Gauri Shankar Sinha, Assistant Commissioner of Central Excise al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal), Central Excise Delhi-I has taken cognizance of above dated 29-9-2009 orders of Hon'ble Tribunal and while setting aside the impugned orders of adjustments of rebate amounts against pending confirmed demands, directed the lower authorities to consider sanction of impugned rebate claims after necessary verifications stated in impugned Order-in-Appeal. 11. Government after due perusal of all the sequential facts as above is of the opinion that while the bona fide of the original adjudicating authority's orders of appropriations/adjustments might be proper in the given situation at time of non-existence of extension of stay already granted but the orders of the Commissioner (Appeals) herein are perfectly legal and proper as Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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