TMI Blog2016 (2) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... se (a) of sub-section 1 of section 142 of the Customs Act, 1962, which enables the proper officer to deduct or to require any other officer of 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 any such other officer of Customs. In view of the fact that sub-clause (ii) of clause (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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and is registered under the provisions of Central Excise Act, being entitled to rebate under rule 18 of the Central Excise rules 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 Fiat India Pvt. Ltd. (now known as M/s New Holland Fiat India Pvt. Ltd.) has allowed the appeal of revenue against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, 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 Central Excise Rules read with section 11B (2) of Central Excise Act, 1944, in cash is adjusted in view of the confirmed demand of interest liability. 3. Being aggrieved, the appellant preferred an appeal before the learned Commissioner (Appeals) who, vide the impugned order, upheld the adjustment. Being aggrieved, the appellant is in appeal before this Tribunal. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that on the date of adjustment made by the adjudicating authority, the said liability of interest was sub-judice and could not have been said to be crystallized and as such the adjustment is bad as only demands which are attained finality and/or crystellized can be collected by way of certificate proceedings, can only be recovered under the special powers of recovery vested in the authority under section 142 of the Customs Act read with section 11 of the Central Excise Act. The ld. Counsel also relies on the ruling of the Hon'ble Madhya Pradesh High Court in the case of National Industries Ltd. Vs Union of India 2001 (134) ELT 616 wherein adjustment of refund of the amount of pre-deposit was made when the appeal was pending consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable opportunity to the assessee to put forward its case. The ld. Counsel also points out from the final order dated 29.9.14, the Honourable Bombay High Court in their order observed that mere ommission to mention of interest by the adjudicating authority in its order dt. 31.01.2002 will not entitle to the petitioners to avoid liability to pay interest after the order 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property and this ground is decided in favour of the revenue and against the appellant. So far the 3rd ground is concerned 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, I hold that the recovery is bad as the matter was sub-judice before the Honourable Bombay High Court on the date, the adjudicating authority made the adjustment of the rebate with the amount of interest for the previous period. 7. Thus, the appeals are allowed and the impugned order is set aside. The adjudicating authority is directed to restore the amount which have been adjusted in order-in-original and it is held that the appellant will be entitled to consequential r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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