2017 (3) TMI 931 - AT - Central Excise

Claim of refund and interest on delayed refund - adjustment of refund with the amount due in another case against which the appeal was pending - Held that - the issue involved in the present appeal is covered in favour of the appellant by the decision of the Hon ble Karnataka High Court in the case of Stella Rubber Works 2013 (3) TMI 299 - KARNATAKA HIGH COURT , where it was held that When once the adjudicating authority has held that the assessee is entitled to refund of the amounts which he had paid to the Department, in absence of a specific provision authorizing the Revenue adjusting the said amount towards due to them, it is improper for them to make such adjustment, No question of invoking equitable consideration - as per Section 11B and 11BB, appellants are entitled to interest after the expiry of three months from the date on which the application for refund was received - appeal allowed - decided in favor of appellants.

Issues:
1. Assessment of goods under Section 4 or Section 4A of the Central Excise Act 1944.
2. Appropriation of dues by the department despite pending appeal and stay application.
3. Entitlement to interest on refund claim.

Analysis:

1. Assessment of goods under Section 4 or Section 4A:
The appeal revolved around the dispute regarding the assessment of milky bar eclairs by a registered cooperative society under Section 4 or Section 4A of the Central Excise Act 1944. The appellant claimed assessment under Section 4, while the department argued for Section 4A. The matter was initially disputed, leading to a show-cause notice demanding differential central excise duty. The issue was resolved based on Supreme Court orders upholding the CESTAT's decision in favor of the appellant. The appellate tribunal ruled in favor of the appellant, granting consequential relief during the pendency of the dispute. The lower authority had sanctioned rebates and appropriated sums towards dues owed by the appellant, leading to a refund claim and subsequent appropriation of dues by the department. The Commissioner (Appeals) rejected the appeal, prompting the present appeal.

2. Appropriation of dues despite pending appeal and stay application:
The crux of the issue lay in the department's appropriation of dues despite the pendency of the appeal and stay application against the appellate order before the CESTAT. The appellant argued that no coercive action should be taken during the appeal's pendency, citing judicial precedents from various High Courts, including the High Court of Karnataka. The appellant emphasized that the department's appropriation was based on dues payable for other cases without a granted stay. The Commissioner (Appeals) relied on a CBEC circular regarding the recovery of confirmed demands during stay application pendency. However, the appellant contended that such appropriations were improper, citing judgments emphasizing the inappropriateness of adjusting refunds against dues without specific authorization.

3. Entitlement to interest on refund claim:
Regarding the entitlement to interest on the refund claim, the appellant argued for interest payment from the expiry of three months from the date of the refund application. Citing Section 11B and 11BB, the appellant relied on a Supreme Court decision to support the claim for interest until the refund payment. The tribunal agreed with the appellant's argument and held that interest should be paid from the specified date until the refund was processed. Consequently, the appeal was allowed, and the appellant was entitled to interest as per the legal provisions.

In conclusion, the tribunal ruled in favor of the appellant on all issues, setting aside the impugned order, and allowing the appeal while affirming the entitlement to interest on the refund claim.

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