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2016 (2) TMI 327 - CESTAT ALLAHABAD

2016 (2) TMI 327 - CESTAT ALLAHABAD - 2016 (343) E.L.T. 285 (Tri. - All.) - Appropriation of the rebate amount - Appropriation made against the liability for interest relating to prior period of their Bombay unit - lack of notice to the appellant - Held that:- The appellant was required to be given notice before adjustment of any amount from the rebate for subsequent period, Section 142 read with section 11, being the special power of recovery (garnishee proceedings). - Scope of notificatio .....

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lause (c) of section 142 (1), has been made "applicable to the provisions of Central Excise which includes all movable or immovable which can be attached for the purposes of recovery, hold that the cash is movable property and this ground is decided in favour of the revenue - Demand for interest - Held that:- The amount of interest was sub-judice and had not attained finality and as such, could not be recovered by way of special mode of recovery, thus hold that the recovery is bad as the ma .....

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- FINAL ORDER NOS. 70045-70049/2015 - Dated:- 19-10-2015 - Anil Choudhary, Member (J) For the Appellant : Shri Narendra Singhvi, Adv. For the Respondent : Shri Ashok B Kulgod, AC (AR) JUDGEMENT Per: Anil Choudhary: The Appellant, New Holland Fiat India Pvt. Ltd., are manufacturer of motor vehicles and its part and is in appeal against common order in appeal number NOI/EXCUS/000/APPL/57-61/14 dated 18.03.2014 passed by Commissioner of Central Excise (Appeals), & Customs, Noida whereby the ap .....

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es read with notification number 19/2004 - CE dated 6/9/2004 applied for refund vide 5 different refund claims which were adjudicated vide order-in-original Nos. 471- 473/R/AC/N-IV/13-14 dated 26/9/2013 and 507 -508/R/AC/N-IV/13-14 dated 22/10/2013 totaling an amount of ₹ 53,08,585. The adjudicating authority vide order in original observed that vide judgement of Honourable Supreme Court dated 29/8/2012 pronounced in civil appeal number 1648 - 1649 of 2004 in the case of CCE, Mumbai II Vs .....

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x - II dated 8/11/12 issued under section 142 (i) (c) (ii) of the Customs Act by the Asst Commissioner of Central Excise, Division Kurla:, Mumbai II and Asstt Commissioner of Central Excise, Division IV, Noida respectively. However the liability of interest amounting to ₹ 24,42,76,163/-against the assessee is lying pending with the Additional Commissioner Central Excise Mumbai II. In view of the ruling of the Apex Court, it can be said that order in original has attained finality. In view .....

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icable to Central Excise Act in the like matters read with Notification No. 68/63-CE dated 4/5/1963, as amended, in such matter, according to which, the proper officer may deduct or may require any other officer of the Customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of the Customs/Central Excise. And accordingly, it was ordered that the amount of rebate payable in terms of rule 18 of the Centra .....

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tice to the appellant of the intended adjustment under the powers as vested under section 11 of Central Excise Act read with Section 142 of the Customs Act read with the notification. The 2nd ground urged is that the enabling notification, that is notification number 68 of 1963 as amended, have not made Section 142 (1)(a) of Customs Act applicable to the Central Excise act, which reads as follows: "......the proper officer may deduct or may require any other officer of Customs to deduct the .....

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er of the Honourable Supreme Court in August 2012 and pursuant thereto the appellant challenged those letters demanding interest in writ petition number 3901 of 2013 before the Honourable Bombay High Court which was filed on 18/4/13. The said writ petition was entertained and the same was finally decided in favour of revenue vide order dated 29/9/2014. He vehemently argued that on the date of adjustment made by the adjudicating authority, the said liability of interest was sub-judice and could n .....

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2001 (134) ELT 616 wherein adjustment of refund of the amount of pre-deposit was made when the appeal was pending consideration before the appellate authority by taking recourse to the provisions of Section 11. In the writ petition challenging the action the Honourable High Court did not give the approval of the action of the authority to take the resort to section 11 even before the order of adjudication had attained finality as the appeal was pending consideration before the appellate authorit .....

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der was subject to appeal and stay application was pending before the Tribunal. It was held that amount cannot be said to have become recoverable or due from the appellants. Further, reliance is placed on the ruling in the case of KEC International Ltd. Vs. Commissioner 2014 (310,) ELT 615, where the amount of interest was adjusted against the amount of rebate, this Tribunal, held that it is not permissible to adjust unconfirmed demand of interest and further for recovery of any demand from an a .....

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of the Supreme Court". Moreover it was also observed that the amount of interest arises from negotiated installments with the revenue. Accordingly the ld. Counsel prays for setting aside the impugned order so far as adjustment having been made without notice to them, under the provisions of section 11 of the Central Excise Act read with section 142 of the Customs act. 5. The ld. DR. relies on the impugned order. He further states that even otherwise the amount of interest have attained fin .....

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