TMI Blog2019 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed been already sub-judiced before the competent authority, to my opinion, Department was not entitled to recover the same. The question of suo moto adjusting the sanctioned refund qua the said demand therefore does not arise. The Commissioner (Appeals) has committed an error while relying upon such direction of the Board, which was technically as well as practically of no relevance at the time of impugned order - the Department was not entitled to suo moto adjust the refund claim - appeal allowed - decided in favor of appellant. - Excise Appeal No. E/51554/2018-ST [SM] - Final ORDER NO. 50246/2019 - Dated:- 29-1-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Ms. Priyanka Goel, Advocate Presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only provision available with the Department to recover the sums due to the Government is Section 11 of Central Excise Act, 1944. It reads as follows: Section 11. Recovery of sums due to Government. In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made there-under including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums [may deduct or require any other Central Excise officer or a proper officer referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said para itself, the Circulars speaks about the recovery to be initiated within 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition, whichever is earlier. But it is observed that by the time, the impugned order in appeal was passed. Since the deposit at the rate of 7.5% is made mandate, the question of filing of any stay applications is absolutely redundant concept. 8. Hence, I am of the opinion that Commissioner (Appeals) has committed an error while relying upon such direction of the Board, which was technically as well as practically of no relevance at the time of impugned order. In view of entire discussion, it is held that the Department was not entitled to suo moto adjust the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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