TMI Blog2020 (3) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed by the Department or the earlier management to the BIFR. The proceedings before the BIFR had not been assailed before any appellate forum. Appeal dismissed. - EXCISE APPEAL NO. 50248 OF 2019-DB - FINAL ORDER NO. 50145/2020 - Dated:- 24-1-2020 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri O.P. Bisht, Authorized Representative of the Appellant Shri Arjun Garg, Advocate for of the Respondent ORDER JUSTICE DILIP GUPTA This Appeal has been filed by the Department to assail the order dated 27 November, 2018 passed by the Commissioner (Appeals), Central Excise and Central Goods and Service Tax, Jaipur The Commissioner Appeals . The Appeal was filed by the respondent Rajasthan Explosives and Chemicals Ltd. Rajasthan Explosives before the Commissioner (Appeals) to assail the order dated 11 April, 2018 passed by the Assistant Commissioner, CGST Division-F, Bharatpur The Assistant Commissioner . The Assistant Commissioner had sanctioned refund claim of ₹ 1,23,72,567/- to the Respondent under section 11B of Central Excise Act, 1994 Excise Act , but adjusted the same towards the confirmed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Bank and payment to various statutory Authorities, including the Central Excise Department. The scheme sanctioned by the Board by order dated 22 November, 2000 also fixed the cut-off date as 31 March, 2000. The relevant portion of the sanctioned scheme is reproduced hereunder:- 6.E: Government of India:- (xviii) Not to claim any other liability which was not taken/disclosed in the books by the old management or not provided in the package approved by the Hon ble BIFR from new Management. 4. Further, to review the progress of the implementation of the scheme, hearing was conducted and on 24 March, 2003, in view of the demands raised by the Central Excise Department. The Board directed the Department to strictly adhere to the provisions of sanctioned scheme and not to raise any claim against the new promoter that was not covered in the Sanctioned Scheme or disclosed in the books of accounts prior to the cut-off date of the scheme. The following direction was issued: 16 (v). The Central Excise Department would strictly adhere to the provisions of the SS, which would inter-alia include the provisions laid out in paras 6D (xii) and 6D (xiii) of the SS and would not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings of the subsequent review hearing held on 24.03.2003, held that these claims were neither raised by the Deptt. during the during the circulation of the DRS nor even during the RH held on 02.05.2000 when the Bench heard the objections/suggestions from the concerned agencies and against clarified that the new management would not be liable for payment of any additional claim from Central Excise Department, which was not covered in the SS/disclosed in the books of accounts prior to the scheme sanctioned by the Board. iv. The BIFR, vide Para 16(v) of summary record of proceedings of the subsequent review hearing held on 24.03.2003, held that the Central Excise Department would strictly adhere to the provisions of the SS, which would inter-alia include the provisions laid out in paras 6D(xii) and 6D(xiil) of the SS and would not raise any additional claim against the new promoter, other than those envisaged in the SS, failing which, the Bench would be compelled to consider appropriate action(s) for violation of the directions of the Bench, as may be deemed fit, according to law. The Central Excise Department would also not initiate any punitive action against the new promoter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specify reasons, why an appeal was not filed against the scheme; he could not give any plausible reason why the order has not been implemented in terms of the observation of the Hon ble BIFR in summary record of procedure of the review hearing held on 24.03.2003 and he admitted that there is nothing on record that a contrary view has been taken by any authority to this advice in respect of legal advice, given by Sh. Kamalakar Sharma, ASG of India, vide his letter dt. 15.01.2007. 20. In view of the above, I find that no recovery of dues/arrears adjudged under OIO no. 141/2001 dated 18.10.2001 and 5/2001 dated 23.02.2001 could be effected from the appellants as the new management (1. e. appellant) has been accorded immunity from any liability, which was not taken on record by the old management or not covered in the BIFR package and therefore, liability on account of said cases of dues/arrears could not recovered from the appellants, since, neither, of the said cases was covered under sanctioned scheme. Thus the adjudicating authority has wrongly adjusted the amount of ₹ 1,23,16,228 /- from the sanctioned refund claim vide the impugned order. 7. It is against this orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emands and recovery proceedings, as stated aforesaid in 2009, in contravention to the sanctioned scheme on account which the respondent filed a Miscellaneous Applications No. 444/2013 and 252/2014 before the BIFR seeking relief of restraining the department to not pursue/file recovery proceedings against the respondent wherein the Central Excise Department in their reply dated 17.10.2013 filed in M.A. No. 444/2013 categorically stated in Para-9 that the benefit of the sanctioned scheme has already been given to the company in 4 cases involving revenue of ₹ 462.62 Lakhs which includes the present demands raised by the Appellant namely Order-in-Original No. 141/2001 and Order-in-Original No. 5/2001 for sum of ₹ 7,38,000/- and ₹ 1,15,78,228/- respectively. However, the said applications was disposed of vide order dated 16.09.2015/29.09.2015. 9. The Bench of the High Court of Rajasthan, at Jaipur in reference no. 5/2002 filed by the Appellant Company, has held vide order dated 17.05.2017 that: the BIFR vide order dated 22.11.2000 granted immunity to the assesse from recovery of arrear pertaining to the period prior to the cut-off date i.e. 31.03.2000, the recov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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