2016 (2) TMI 327 - AT - Central Excise

Appropriation of the rebate amount - Appropriation made against the liability for interest relating to prior period of their Bombay unit - lack of notice to the appellant - Held that - The appellant was required to be given notice before adjustment of any amount from the rebate for subsequent period, Section 142 read with section 11, being the special power of recovery (garnishee proceedings). Scope of notification number 68 of 1963 as amended - whether have not made Section 142 (1)(a) of Customs Act applicable to the Central Excise act? - Held that - Clause (a) of sub-section 1 of section 142 of the Customs Act, 1962, which enables the proper officer to deduct or to require any other officer of Customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or any such other officer of Customs. In view of the fact that sub-clause (ii) of clause (c) of section 142 (1), has been made applicable to the provisions of Central Excise which includes all movable or immovable which can be attached for the purposes of recovery, hold that the cash is movable property and this ground is decided in favour of the revenue Demand for interest - Held that - The amount of interest was sub-judice and had not attained finality and as such, could not be recovered by way of special mode of recovery, thus hold that the recovery is bad as the matter was sub-judice before the Honourable Bombay High Court on the date, the adjudicating authority made the adjustment of the rebate with the amount of interest for the previous period. Thus, the appeals are allowed and the impugned order is set aside. The adjudicating authority is directed to restore the amount which have been adjusted in order-in-original and it is held that the appellant will be entitled to consequential relief, if any, in accordance with law.

Summary

Issues:
1. Appropriation of rebate amount against interest liability.
2. Jurisdiction of the adjudicating authority in making the adjustment.
3. Finality and crystallization of interest liability for recovery.

Analysis:
1. The Appellant, a manufacturer of motor vehicles, appealed against the appropriation of the rebate amount against the interest liability for a prior period. The adjudicating authority upheld the appropriation based on the ruling of the Supreme Court in a previous case. The Appellant contended that the adjustment was made without notice and challenged the authority's jurisdiction under Section 142 of the Customs Act. The Appellant argued that the interest liability was not finalized as it was sub-judice, making the recovery invalid.

2. The Appellant raised concerns regarding the lack of notice before the appropriation and questioned the authority's power under Section 142 of the Customs Act. The Appellant argued that the enabling provision did not apply to the Central Excise Act, rendering the adjustment jurisdictionally flawed. However, the Tribunal found that the provision allowing deduction from money owing to the person was applicable to movable property like cash, supporting the revenue's position.

3. The Appellant emphasized that the interest liability was not finalized as it was still under judicial consideration. Citing precedents and legal principles, the Appellant argued that only demands with finality or crystallization could be collected through special recovery powers. The Tribunal agreed with this argument, concluding that the adjustment made while the interest liability was sub-judice was improper.

Conclusion:
In the final judgment, the Tribunal allowed the appeals, setting aside the impugned order. The Tribunal directed the adjudicating authority to restore the adjusted amount to the Appellant and acknowledged the Appellant's entitlement to any consequential relief as per the law. The judgment highlighted the importance of finality and crystallization of liabilities before recovery actions are taken, emphasizing the need for adherence to legal procedures and principles in such matters.