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M/s ABB LTD., Nasik Versus The Commissioner of Central Excise, Bengalore

Appropriation of rebate sanctioned in cash against the custom duty arrears - As per the Revenue, the appropriation is permitted in accordance with law whereas as per the appellants the appropriation of rebate of refund cannot be done against the customs duty arrears by invoking Section 142 of the Customs Act - Held that:- All the orders against which appropriation is made have been challenged by the appellant before this Tribunal and the stay has been granted by this Tribunal and they are pendin .....

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ot reached finality. Therefore we set aside the impugned order and allow the appeals with consequential relief if any. - E/842-848/2012-DB - Final Order No. 20348-20354/ 2016 - Dated:- 20-5-2016 - SHRI S.S GARG, JUDICIAL MEMBER AND SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. G. Shivadas, Adv For the Respondent : Mr. Mohammd Yusuf, A.R. ORDER Per : S.S GARG The present appeals are directed against the orders-in-appeal No. 11 to 17/2012 dated 15.2.2012 passed by Commissioner (App .....

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laim for refund of duty paid on the excisable goods exported by them in terms of Rule 18 of the Central Excise Rules. The Assistant Commissioner,vide order-in-original dated 22.11.2011 sanctioned the rebate claim but the said order appropriated the rebate sanctioned against the custom arrears in terms of Section 142(1) of the Customs Act 1962. The order held that the Assistant Commissioner, Customs has vide four detention notices all dated 1.10.2011 has required that the total customs arrears of .....

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of rebate granted against duty is not permitted when the demand has not attained finality. He further submitted that provisions of Section 11 are attracted only when the confirmation of demand has attained finality and so long as the demands have not attained finality the same cannot be called as arrears which can be adjusted against the refund sanctioned. Learned counsel further submitted that the impugned order has upheld the appropriation of rebate towards custom dues payable to the departmen .....

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sions wherein it was held that Section 11 of the Central Excise Act 1944 is to be invoked only when demands have reached finality and should not be invoked at initial stage.: i. Voltas Ltd Vs CCE [2006 (201)ELT 615(Tri-Bang)] ii. Poonam Trading Company Vs CC Mumbai [2008(229)ELT 627(Tri-Mum)] iii. Stella Rubber Works (Unit II) Vs CCE (Appeals-II) Bangalore [2007(211)ELT 433(Tri-Bang)] affirmed in 2011(267)ELT 495 (Karnataka High Court) The learned counsel further gave details of all the appeals .....

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emand made in other custom cases in terms of Section 142(1)(a & b) of the Customs Act has been done without any authority of law. He also submitted that as per Section 142(1)(a) of the Customs Act recovery of custom duty arrears by the proper officer or any other officer of the customs requisitioned by the proper officer of customs by deducting the amount payable by the assessee from any money owing to such person which may be under the control of the proper officer or such officer of custom .....

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