2011 (8) TMI 954 - AT - Central Excise

Waiver of pre-deposit - refund - wrongly taking credit suo motto by the applicant Held that - applicant was eligible for refund of Rs.25/- lakh was settled way back in 2006 and that the Tribunal vide order dated 3.12.2009 held that the department was not entitled to adjust the interest amount from the refund of Rs.25/- lakh sanctioned on 8.1.2008. It has not been shown by the department that they have challenged the order of the Tribunal dated 3.12.2009 and got it set aside or got it stayed. pre-deposit waived

Summary

Issues:

1. Adjustment of interest amount from the refund
2. Legality of credit taken suo motto by the applicant
3. Demand for short payment, interest, and penalty
4. Tribunal's decision on the department's entitlement to adjust the interest amount
5. Commissioner's decision upholding the Original Authority's order
6. Pre-deposit of dues as per the impugned order

Analysis:

1. The issue of adjustment of interest amount from the refund arose when the department adjusted a sum of Rs.18,17,484 out of Rs.25 lakhs refunded to the applicants, claiming there was some interest amount payable by the applicant in a Service Tax dispute. The Tribunal, in appeal No. E/1566/2008, held that such adjustment was not permissible, as seen in the order dated 3.12.2009.

2. The legality of the credit taken suo motto by the applicant was questioned when the Original Authority, in response to a show cause notice, held that the credit taken by the applicant was not legal. Consequently, a demand for Rs.25 lakhs as short payment during March 2008 was made, along with interest and a penalty of Rs.15 lakhs. The Commissioner (A) upheld this order in a decision dated 29.7.2010.

3. Despite the applicant wrongly taking credit suo motto, it was established that the applicant was eligible for a refund of Rs.25 lakhs back in 2006. The Tribunal's order dated 3.12.2009 further clarified that the department was not entitled to adjust the interest amount from the refund sanctioned on 8.1.2008. The department did not challenge or seek to set aside the Tribunal's order.

4. In light of the circumstances, the Appellate Tribunal decided that no pre-deposit of the dues as per the impugned order should be directed. Consequently, the Tribunal waived the pre-deposit of the dues and stayed the recovery thereof until the appeal was disposed of. This decision was pronounced and dictated in open court by the judges.