9911796707
TMI Blog2024 (1) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise & Service Tax, Noida. By the impugned order Commissioner (Appeals) has held as follows:- (i) The appropriation of sanctioned refund claim to the extent of Rs.2,33,54,306/- vide impugned order is set aside. (ii) The appropriation amounting to Rs.64,37,321/- under the impugned order against the confirmed demand from the sanctioned refund claim is upheld. (iii) The impugned Order-in-Original No.R-193/DC/Div.-I/2013-14 dated 17.09.2013 is modified to the above extent and the appeal is disposed of on above terms. 2. Revenue has filed this appeal challenging the impugned order setting aside the appropriation of sanctioned refund to the extent of Rs.2,33,54,306/-. They have relied upon the decision in case of CCE, Delhi-2 vs. Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above referred Stay Order. The letter received by the department on 20.09.2012. 20.09.2012 Order-in-Original No.R-193/DC/N-I/2-13-14 dated 17.09.2013 dispatched. Vide this Order a refund of Rs.2,97,91,627/- was granted. Out of such refund, Rs.2,97,91,627/- adjusted against demand confirmed vide Order-Original No.33/Commissioner/Noida/2012-13 and balance Rs.64,37,321/- adjusted against demand confirmed vide Order-in-Original No.37/Commissioner/ Noida/2012-13 15.01.2014 On appeal against Order-in-Original No.R-193/DC/N-I/2-13-14 dated 17.09.2013, the Commissioner (A) set aside the order dated 17.09.2013 to the extent only where Rs.2,97,91,627/- adjusted against demand confirmed vide Order-in-Original No.33/Commissioner/Noida/2012-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment of liability to service tax, interest and penalties confirmed by the impugned adjudication order, is unsustainable and that consequently adjustment of such illegal levy from the refunds ordered is arbitrary and illegal, this application is filed. By the final order today, we disposed of the substantive appeal and have quashed the adjudication order passed by the Commissioner of Customs, Central Excise and Service Tax, Noida vide Order-in-Original No. 37/Commissioner/Noida/ 2012-13, dated 30-10-2012. As the assessed liability of the petitioner under the adjudication order has thus suffered a plenary eclipse, the petitioner would entitled to refund. The petitioner is at liberty to apply for refund. When made, such application shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been taken on the said appeal or stay application for two years and the appeal was decided only on 9-2-2016 confirming the original order. Against such order, the appellant has already filed an appeal with the Tribunal on payment of a pre-deposit of 7.5%. Considering the sequence of these events, it is apparent that the Original Authority acted without following any principles of natural justice by putting the appellant in notice before coercive action of recovery. It is to be noted that the appeal against the confirmed demand along with stay application was pending with the very same Authority, who upheld the correctness of such appropriation without considering the pendency of the appeal by the party against the demand. In any case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in accordance with law whereas as per the appellants the appropriation of rebate of refund cannot be done against the customs duty arrears by invoking Section 142 of the Customs Act. Further on perusal we find that all the orders against which appropriation is made have been challenged by the appellant before this Tribunal and the stay has been granted by this Tribunal and they are pending for final disposal and the demand has not attained finality. Further it is a settled position of law as held in the cases cited above that the appropriation of refund amount towards duty demand pending in other cases which has not attained finality is not legal and proper. Therefore, keeping in view the above stated position, we are of the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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