TMI Blog2017 (2) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Brief facts are that the appellants are engaged in manufacture of paper and paper boards are registered with the Central Excise Department as well as Service Tax Department. They export goods to various countries and the exports were made after paying appropriate duty of excise on the goods. The appellants thereafter filed rebate claim under Rule 18 of the Central Excise Rules, 2002. The dispute in the present appeals arise on account of denial of interest on the delayed payment of rebate claims. 2. The appellant had filed 3 rebate claims on the duty paid on the goods exported during the period from 01 .02.201 3 to 31.02.2013. All these applications were disposed vide Order-in-Original No. 9/2013 dated 20.08.2013, Order-in-original No. 12/2013 dated 25.09.2013 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty confirmed under Order-in-Original Nos. 67/2012, 2/2013 and 30/2012. The appellant was given a cheque for balance amount of ₹ 22,27,203/- after appropriation. The appeals preferred by appellants against the Order-in-Original Nos. 67/2012, 2/2013 and 30/2012 was pending before the Commissioner (Appeals) along with stay applications at the time of appropriation. 5. Aggrieved by the order of appropriation, the appellant filed 3 separate appeals before the Commissioner (Appeals). Meanwhile, the duty, interest and penalty confirmed by the Order-in-Original Nos. 67/2012, 2/2013 and 30/2012 was set aside by an order passed by the Commissioner (Appeals) dated 21.03.2014. Thus Commissioner (Appeals) vide orders impugned herein directed to pay entire rebate claim along with interest. But however, Commissioner (Appeals) granted interest only with effect from 21.03.2014, the date on which the duty, interest and penalty were set aside. Being aggrieved the appellant has filed the present appeals contending that they are eligible for interest from three months after the date of sanctioning the rebate for the reason that the appropriation was illegal and against the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2014 by which the duty, interest and penalty was set aside. That the appellant is not eligible for any further interest. 8. I have heard the submissions made by both sides. The appellant has come before the Tribunal praying for interest on the delayed sanction of rebate for the reason that the sanctioned rebate was appropriated against the provisions of law. The department has appropriated the sanctioned rebate towards duty confirmed by Order-in-Original Nos. 67/2012, 2/2013 and 30/2012. The demand as per these Orders-in-Original were set aside by the Commissioner (Appeals) vide order dated 21.03.2014. Thus during the pendency of the appeal and stay application, the rebate sanctioning authority has appropriated the sums from the sanctioned amount, Undisputedly, the appropriation has taken place before the demand attained finality. The rebate sanctioning authority was well within its knowledge that the appellant has filed appeal as well as stay application before the Commissioner (Appeals). The delay in disposing the stay application was not due to any intentional act on the part of the appellant. The only ground raised by the Cd. AR appearing for the department is that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the Board has directed that a period of thirty days should be allowed to lapse after the filing of the appeal, allowing the assessee time to move the Appellate Authority for the disposal of the stay application. The reason why the submission cannot be accepted is because, in a situation where the Commissioner (Appeals) or, as the case may be, the CESTAT are unable to decide the application for stay within a period of thirty days of the filing of the appeal, it would be completely arbitrary to take recourse to coercive proceedings for the recovery of the demand until the application for stay is disposed of. Administrative reasons including the lack of adequate infrastructure, the unavailability of the officer concerned before whom the stay application has been filed, the absence of a Bench before the CESTAT for the decision of an application for stay or the sheer volume of work are some of the causes due to which applications for stay remain pending. In such a situation, where an assessee has done everything within his control by moving an application for stay and which remains pending because of the inability of the Commissioner (Appeals) or the CESTAT to dispose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 10. Similar view was taken by the Co-ordinate Bench of the Tribunal in the case of M/s Kirloskar Industries Ltd., (supra) and Juviliant Organics Ltd. In the case of ABB Ltd., (supra) the Division Bench of the Tribunal has held that appropriation of sanctioned refund against demands which have not attained finality is not legal and proper. The Tribunal in the said case has referred to the judgment rendered by Hon'ble High Court of Karnataka in the case of Commissioner Vs Stella Repair Works [2011 (267) ELT 495 (Kar)] . In Stella Repair Works the Hon'ble High Court of Karnataka observed that perusal of Section 11 of Central Excise Act, makes it very clear that the said provision does not contemplate adjustment of monies due to the assessee towards the amount due to the revenue. That the said section speaks about garnishee proceedings and recovery by attachment and sale. For better appreciation the relevant paragraph is quoted as under: 5. A perusal of the aforesaid provision makes it very clear that if any duty or other sums due to the Central Government under the Act and recovery of certain amounts, if any person owing money to the assessee, the revenue ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
