TMI Blog2001 (10) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of personal hearing, they further pleaded that subsequent to the order of the Assistant Commissioner No. 14/97, dated 21-1-97, stay orders have been passed by the Tribunal in their orders dated 21-7-97 and 3-12-97 respectively. Accordingly, the order of the Assistant Commissioner adjusting the refund amount of Rs. 81,491/- (Eighty-one thousand four hundred and ninety-one) towards part recovery of earlier demands is not correct and proper and therefore should be set aside. I have carefully examined the facts of the case and the findings in the subject adjudication order. I do not find any infirmity in the subject order of the Assistant Commissioner ordering a refund of Rs. 81,491/- (Eighty one thousand four hundred and ninety-one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual duty paid on Cross Arms during the period 15-7-96 to 1-10-96. As no excise duty is payable on Cross Arms as per the appellate orders cited the assessee is not eligible for Modvat credit on the inputs used in the manufacture of Cross Arms and therefore a sum of Rs. 1,17,581/- equivalent to the Modvat already availed as adjustable from the refund amount. Accordingly, refund of Rs. 81,491/- is sanctioned to M/s. K.S.E.B as per Section 11B (2) of the Central Excise Act, 1944, in the absence of any stay order against Collector (Appeals) order cited. I further order that the refund amount of Rs. 81,491/- as sanctioned above, be adjusted against the Central Excise duty due from M/s. KSEB as per order-in-original No. 31/95, dated 13-3-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that it was not permissible to do so without a proper demand in terms of Rule 10. We find that the said ratio has been followed in Indian Plywood Mfg. Co. Ltd. v. CCE [1985 (22) E.L.T. 144 (T)]. Further, the Tribunal had, in Indian Oil Corporation v. CCE [1991 (54) E.L.T. 110] held that duty paid under a particular heading is not to be adjusted towards duty payable under a different tariff heading and also that procedures required under law have to be initiated before making any such adjustment. In this view, we cannot approve the appropriation of the refund of the amount of duty paid on Cross Bars, held to be not exigible, to be adjusted against some other demands of duty pending on other issues/items, as has been done and appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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