2012 (11) TMI 381 - AT - Central Excise

Refund - rebate appropriated towards dues pending from the appellant - Held that - As decided in CCE, Bangalore Vs. Stella Rubber Works 2011 (3) TMI 571 - KARNATAKA HIGH COURT section 11 of the Central Excise Act, 1944 does not contemplate adjustment of monies due to the assessee towards the amount due to the revenue and further held that once the adjudicating authority holds that the assessee is entitled to refund, in the absence of a specific provisions authorizing the revenue adjusting the said amount towards dues to them, it is improper to make adjustment. Therefore, the appropriation of the amounts when the appellant s stay application was pending before the Tribunal is not sustainable in law. Accordingly, set aside impugned order and direct the jurisdictional Deputy Commissioner to refund the appropriated amount forthwith to the appellant along with interest thereon in accordance with the law - in favor of the assessee

Summary

Issues:
1. Appropriation of rebate claims under Section 11 of the Central Excise Act, 1944 without notice.
2. Legality of appropriation under Section 11 when stay application is pending.
3. Jurisdictional authority to refund the appropriated amount along with interest.

Detailed Analysis:
Issue 1: The appeals arose from the sanctioning of rebate claims by the Deputy Commissioner under Rule 18 of the Central Excise Rules, 2002, which were later appropriated under Section 11 of the Central Excise Act, 1944 towards pending dues without prior notice to the appellants. The appellants contended that such appropriation was impermissible in law, citing decisions of various High Courts. The lower appellate authority dismissed their appeal, leading to the present appeal.

Issue 2: The appellants argued that the appropriation under Section 11 was not sustainable in law, especially when a stay application was pending before the higher appellate authority. The Tribunal noted that the appellants had already paid the duty involved along with a penalty, and the lower authority's action nullified the stay order granted by the Tribunal. The Counsel for the appellants relied on judicial pronouncements to support their argument against the appropriation.

Issue 3: The Tribunal considered the submissions of both parties and referred to relevant legal precedents. Citing decisions of various High Courts, including the High Court of Karnataka and the High Court of Bombay, it held that appropriation of amounts during the pendency of a stay application before the Tribunal was not legally sustainable. Consequently, the Tribunal set aside the impugned order and directed the jurisdictional Deputy Commissioner to refund the appropriated amount to the appellants along with interest in accordance with the law.

In conclusion, the Tribunal ruled in favor of the appellants, emphasizing the legal principles outlined in the relevant judicial pronouncements and directing the refund of the appropriated amount with interest.