TMI Blog2012 (9) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ues as on date against the respondent. I find that the first appellate authority was correct in coming to the conclusion while setting aside the impugned order which did the adjustment of the dues against the rebate claim filed and sanctioned by the assessee. I find that the ratio of the decision of the Tribunal in the case of Girdharilal Sugar Alled Industries Ltd. (2004 (1) TMI 205 - CESTAT, NEW DELHI) is also in favour of such a proposition - Decided against Revenue. - Appeal No.E/67 & 68/11 - A/1556-1557/2012-WZB/AHD - Dated:- 28-9-2012 - Mr. M.V. Ravindran, J. For the Appellant: Shri P.N. Sarvaiya, A.R. For the Respondent: Shri Nirav Shah, Adv JUDGEMENT Per: Mr. M.V. Ravind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said claimant/ manufacturer has paid above mentioned duty correctly. Rebate claim of Rs.4,31,318/- (Rs.4,22,280/-) and Rs.4,64,876/- (Rs.4,58,361/-) were sanctioned vide OIO No.51/A.C./Rebate/2010 dated 29.07.2010 and 53 to 56/4.C./Rebate/2010 dated 18.08.2010 by the Assistant Commissioner, Central Excise, Division-l and were adjusted against the arrears arose out of OIA No.313/2009 and OIO No.21/JC/2010 under Section 11 of the Central Excise Act, 1944. 2. Aggrieved by such an order of adjustment of the rebate claim towards the dues are arose out of order in appeal No.313/09, the respondent preferred an appeal before the first appellate authority. The first appellate authority after considering the provisions of Section 11 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by way of refund, rebate etc. It is his submission that in view of the foregoing, the order in appeal dated 18.10.10 be set aside. 4. Ld. counsel would draw my attention to the judgment of the Tribunal in the case of Commissioner of Central Excise, Indore Vs. Girdharilal Sugar Alled Industries Ltd. reported at 2004 (168) ELT 350 and also to the decision of the Hon ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore III Vs. Stella Rubber Works (Unit-II) reported at 2012 (275) ELT 404 (Kar.) and submit that appropriation of the amount against the dues can be done only if there is confirmed demands. It is his submission that the order in appeal No. 313/09 is under challenge and unconditional stay has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een from the above reproduced findings as well as the grounds of appeal of the department and it is not in dispute that as to that there is an appeal against order in appeal No. 313/09 and Tribunal had granted an unconditional stay. The invocation of provisions to Section 11 of the Central Excise Act, 1944 to such an amount which is unconditionally stayed by the Tribunal and adjusting the said amount from the rebate claim sanctioned to the respondent is incorrect as there is no government dues as on date against the respondent. I find that the first appellate authority was correct in coming to the conclusion while setting aside the impugned order which did the adjustment of the dues against the rebate claim filed and sanctioned by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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