2011 (11) TMI 546 - AT - Central Excise

Adjustment of amount due - Refund clam - Held that - current appeal is against the adjustments of an amount of 2, 22, 05, 285/- which was adjusted as pending Government dues. These pending Government dues were confirmed by the learned Commissioner (Appeals) vide his Order-in-Appeal dated 18-1-2001 which was in challenge before the Tribunal in Appeal No. E/1288/2001. Since this Bench vide its final order dated 8-6-2009 has remanded back the matter to the adjudicating authority to reconsider the issue afresh of the Government dues in our considered view this current impugned order is incorrect as there are no Government dues pending from the assessee. In light of this the impugned order is set aside and the matter is remanded back to the adjudicating authority to reconsider the issue afresh after deciding the matter which has already been remanded - Decided in favor of assessee.

Summary

Issues: Appeal against adjustment of pending Government dues and remand of the matter to the adjudicating authority.

Analysis:
The appeal was directed against Order-in-Appeal No. 266/2004, where the appellants had deposited Rs. 5 crores as directed by the Commissioner (Appeals) for hearing and disposing of the appeal against Order-in-Original No. 40-48/97. The Commissioner (Appeals) disposed of the appeal by remand, leading the appellants to file a refund claim. The adjudicating authority, while sanctioning the refund, adjusted an amount due from the appellants as confirmed by OIA No. 25/2001. The appellant appealed against this adjustment, but the Commissioner (Appeals) upheld the Order-in-Original and rejected the appeal.

The counsel argued that the issue of confirmation of demands by lower authorities had been remanded back by the Tribunal in a previous order. The departmental representative also suggested remanding the matter back to the adjudicating authority for reconsideration. Upon reviewing the submissions and records, the judges found that the current appeal was against the adjustment of Rs. 2,22,05,285/- as pending Government dues. These dues were confirmed by the Commissioner (Appeals) but were remanded back by the Tribunal in a previous order. As there were no pending Government dues from the assessee, the impugned order was deemed incorrect. Consequently, the order was set aside, and the matter was remanded back to the adjudicating authority for reconsideration after deciding the previously remanded issue. The appeal was allowed by way of remand.