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M/s. Kisan Irrigations & Infrastructure Ltd. Versus CCE & ST, Bhopal

2015 (6) TMI 1056 - CESTAT NEW DELHI

Eligibility of refund - recovery proceedings - Held that:- The admitted fact is that the Original Authority found that the refund is correctly eligible to the appellant. However, he appropriated the amount against the confirmed demands without due notice for recovery to the appellant. It is a fact that all the confirmed demands were taken up on appeal and were pending with higher appellate Forum with a request for stay of recovery. Before any decision was taken on such stay/appeal coercive actio .....

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e to Government become arrears only after finality is reached on such demand. The Appellate Authority also confirmed such appropriation without examining the legality of action of recovery proceedings. However, as shown now by the appellant, none of the confirmed demands survive as on date. This being not disputed by Revenue also. In any case, in view of non-existence of any confirmed demand as on date, the appellant is rightly eligible for full payment of refund as originally sanctioned by the .....

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ellants filed a claim for refund of ₹ 33,42,525/- with the jurisdictional Asstt. Commissioner. The said claim was processed and sanctioned by the Original Authority vide his order dated 9.7.2014. The Original Authority after sanctioning the refund claim in full ordered the appropriation of the said amount against the confirmed demands of duty in terms of three orders passed by the Original Authority. 3. On appeal, the ld. Commissioner (Appeals) vide the impugned order upheld such appropria .....

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nt for fresh adjudication. Elaborating further, on the status of each confirmed demand, ld. Counsel stated that the order-in-original no.126 dated 31.01.2013 and order-in-appeal dated 24.12.2013, on such original order was set aside by the Tribunal vide Final Order No.53527-53529 of 2015 dated 20.11.2015 ; order-in-original no.129 dated 31.01.2013; order-in-appeal dated 24.12.2013 on such original order was set aside by the Tribunal vide Final Orders No.54511-54513 of 2014 dated 20.11.2014 and t .....

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inal Authority. 5. Ld. AR submitted that the appellant did not produce any stay order or order of higher authority before the Original Authority or Appellate Authority and hence, the order of appropriation was passed. 6. Heard both the sides and examined the appeal records. 7. The admitted fact is that the Original Authority found that the refund is correctly eligible to the appellant. However, he appropriated the amount against the confirmed demands without due notice for recovery to the appell .....

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