2017 (11) TMI 144 - AT - Central Excise

Refund of duty paid on coal ash - Held that - Tribunal in the case of ABB Ltd. 2016 (6) TMI 441 - CESTAT BANGALORE has held that it is a settled position of law that the appropriation of refund amount towards duty demand pending in other cases which has not attained finality is not legal and proper - the appropriation of the refund against the disputed pending appeal is not sustainable in law as the demand in those cases have not reached finality. Therefore impugned order set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of refund claim for duty paid on coal ash - Appropriation of refund amount against pending duty demand - Legal sustainability of impugned order.

Analysis:
The appeal was filed against the rejection of a refund claim for duty paid on coal ash by the appellants, who are engaged in the manufacture of clinker and cement. The refund claim was for a specific amount, and the Assistant Commissioner appropriated this amount against a confirmed duty demand from a previous order. The Commissioner(Appeals) upheld this decision, leading to the present appeal. The appellant contended that the impugned order ignored binding judicial precedents and was unsustainable in law. The appellant argued that the appropriation of the refund against the pending duty demand was improper and not legally sound. The appellant relied on various decisions and a circular issued by the CBEC to support their case, emphasizing that the issue had been settled in favor of the assessee.

During the hearing, the appellant's counsel highlighted that the appropriation of the refund amount against a duty demand pending in other cases, which had not attained finality, was not legally permissible. Citing the case of ABB Ltd., the Tribunal acknowledged that it is well-established that such appropriation is not proper. Consequently, the Tribunal found that the impugned order was not sustainable in law. The Tribunal set aside the impugned order, allowing the appeal of the appellant and providing consequential relief. The decision was pronounced in open court on 31/08/2017.