9911796707
TMI Blog2017 (2) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.09.2013 and Order-in-Original No. 13/2013 dated 25.09.2013 wherein the amounts were sanctioned partly in cash, and partly by way of credit in the CENVAT account. However, the original authority appropriated the amounts sanctioned in cash towards duty confirmed against Order-in-Original No. 67/2012 dated 23.11.2012 Order-in-Original No. 2/2013 dated 16.01.2013 and Order-in-Original No. 30/2012 dated 13.12.2012. 3. Details of the amount sanctioned and amount appropriated as tabulated by the appellant is shown as under: Sl. No Appeal No. Order-in-Original No./Date Amount Refunded Towards Amount Appropriated Total amount granted as per order Amount paid in Cash/ Amount Appropriated Re-credit in the Cenvat Account 1. E/22138/2015 9/2013/ dt. 20.08.2013 22,12,850/- 21,37,432/- 75,418/- OIO No. 67/2012 (PRB) dt. 23.11.2012 Demand Rs. 18,24,193/- Penalty Rs. 18,24,193/- Interest u/s 11AB/11AA of CEA, 44 21,37,432/- [Demand (part)] 2. E/22136/2015 12/2013 dt. 25.09.2013 30,86,067/- 29,80,344/- 1,05,723/- 1.OIO No. 67/2012 (PRB) dt. 23.11.2012 15,10,954/- [Demand (balance)] 2,42,893/- [interest] OIO No. 2/2013 (PRB) dt.16.01.2013 Demand Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant had already filed appeals along with stay applications and the same were pending before the Commissioner (Appeals). The rebate sanctioning authority has appropriated the sums due to the appellant by way of rebate, by invoking section 11 of Central Excise Act, 1944 even before the said demand attained finality. That appellant is entitled to interest for delayed payment under Section 11B of the Act. The amount has been belatedly paid to the appellant on account of the illegal appropriation made by the rebate sanctioning authority. That mere passing of rebate order is not sufficient, it should also result in actual refund of the amount. When the appeal as well as the stay application was pending before the Commissioner (Appeals) the rebate sanctioning authority ought not to have appropriated the amount. That the appeal and the stay application were not delayed on account of any intentional act of the appellant. The Cd. Counsel relied upon the following decisions: (i) Ranbaxy Laboratories Ltd., Vs Union of India [201 1 (273) E.L.T. 3 (S.C.)] (ii) Ronald Pharmaceuticals P. Ltd. Vs Coomr of C.Ex & S.T. Vadodara-l [2014 (310) E.L.T. 777(Tri. -Ahmd) (iii) Kirloskar Ferrou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s affirmed by the Hon'ble Supreme Court reported in [2016 (335) ELT A 79 (S.C.)]. The Hon'ble High Court of Punjab & Haryana in the above judgment observed as under: 47. Thus, in respect of first question of law, it is held that direction to recover the duty demanded and penalty levied, if the stay was not granted within 30 days, contravenes the right of consideration of appeal and of an application for waiver of pre-deposit conferred under Section 35B read with Section 35F of the Act and is illegal. Such direction to the Administrative Officers to recover the amount pending consideration of application of waiver of pre-deposit is not justified and, thus, not enforceable in law. The observations made by Hon'ble High Court of Bombay in the case of Larsen & Toubro [2013 (288) ELT 481 (Bom)] are also note worthy in this regard. 13. The decision of the Supreme Court and the situation which led to the decisions of the Delhi High Court and of this Court take due notice of the fact that the delay in the disposal of an appeal by an assessee or for that matter the delay in the disposal of a stay application may take place for reasons which lie outside the control of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the appeal before the Tribunal was not disposed of within 180 days, the Supreme Court held that this would not apply to a situation where the appeal had remained pending for reasons not attributable to the assessee. 9. Section 11 of the Central Excise Act has been invoked to adjust the refund amount to the alleged arrears. The Tribunal in various decisions relied by the counsel for appellant has held that the assessee is entitled to interest for delay in payment of sanctioned rebate on account of the sanctioned rebate being adjusted to pending arrears which have not reached finality. The discussion of the Tribunal in the case of Ronald Pharmaceuticals Private Ltd., (supra) is noticed as under: 5. Heard both sides and perused the case records. A rebate claim of the appellant was filed on 29-4-2010 which was found admissible and sanctioned on 28-7-2010. However, the same was adjusted against some arrears pending against the appellant. The appropriation made by the Revenue was protested by the appellants that such adjustment without putting them to notice was not permissible. Separate appeals filed against the cases of arrears, against which adjustment was made, and CESTAT vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles the revenue to adjust the amounts due to them as against the amounts due by them to the assessee. In fact reliance is placed on the Judgments of CESTAT which gives an impression that adjustment is permissible. Such adjustment is not based on any statutory provision. When once the adjudicating the authority has held that the assessee is entitled to refund of the amounts which he had paid to the Department, in the absence of a specific provision authorising the revenue adjusting the said amount towards due to them, it is improper for them to make such adjustment, In this view of the matter, there is no question of invoking equitable considerations. As without authority they cannot levy any duty on the assessee and without authority of the law they also cannot adjust the amounts which are ultimately due to the assessee when the amounts are due by the assessee to the Department. After making refund of the amount which is due it is open to the revenue to proceed against the assessee to recover the amounts under the provisions of the Act. Therefore, the Tribunal committed no illegality in setting aside the said adjustment. We do not see any infirmity in the said order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
