2017 (10) TMI 5 - AT - Central Excise

Suo moto adjustment of refund amount towards pending demand under section 11 - Held that - similar issue decided in the case of VOLTAS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-II 2006 (5) TMI 232 - CESTAT, BANGALORE , where it was held that refund cannot be adjusted against the demands which are sub-judice and section 11 should be involved only when the demands have reached finality and should not be invoked even at the initial stage - refund to be ordered to be paid without any adjustment - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim adjustment against pending demands under Section 11 of the Central Excise Act 1944.

Analysis:
The appellant, engaged in manufacturing chewing tobacco, filed a refund claim for excise duty paid in advance under the compound levy scheme. The jurisdictional authorities sanctioned the refund but directed partial refund by cheque and adjustment of the rest against pending demands under Section 11. The appellant challenged this order, arguing that the demands were not final as appeals were pending, citing the decision in Voltas Ltd. vs. CCE Hyderabad. The Tribunal observed that Section 11 is for recovery of sums due to the government and should be invoked only when demands are final, not at the initial stage. Refund cannot be adjusted against sub-judice demands, as these may be set aside by appellate authorities. The Tribunal allowed the appeal, following the precedent set by the co-ordinate bench in Voltas Ltd., and granted consequential relief to the appellant.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal, emphasizing that Section 11 should only be invoked when demands are final, not at the initial stage. The decision in Voltas Ltd. established that refund cannot be adjusted against pending demands under appeal, as these may be overturned by higher authorities. The Tribunal's ruling aligned with the principle that Section 11BB provides for interest on delayed refunds, which was applicable in this case. The appellant was granted consequential relief in line with the Tribunal's findings and the legal provisions governing refund adjustments against pending demands.