2018 (3) TMI 821 - AT - Central Excise

Adjustment of Outstanding amount against rebate claims - pre-deposit - Rule 18 of the Central Excise Rules, 2002 - Held that - Admittedly, the appellant has made the pre-deposit and the appeals are pending disposal before this Tribunal. In these circumstances, the amount confirmed by the order dated 31.5.2010 and 20.1.2011 are in dispute, therefore, during the pendency of the appeal filed by the appellant, the same cannot be adjusted against the rebate claim. The dues against the order dated 31.5.2010 and 20.1.2011 cannot be adjusted against the rebate claim filed by the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues:
Adjustment of rebate claim against outstanding dues pending before the Tribunal.

Analysis:
The appellant filed rebate claims under Rule 18 of the Central Excise Rules, 2002, which were sanctioned but adjusted against outstanding payments. The appellant appealed against this adjustment before the Tribunal.

The appellant argued that for an order dated 2.6.2008, the Commissioner (Appeals) had granted a waiver of pre-deposit, and the demand was stayed. The appellant had made a pre-deposit of 10% of the duty for orders dated 31.5.2010 and 20.1.2011, as per amended provisions of Section 35F of the Act. The appellant contended that the impugned demands could not be adjusted until the appeals were finalized.

The respondent supported the adjustment, stating that no stay had been obtained by the appellant from a higher forum.

After hearing both parties, the Tribunal found that the demand related to the order dated 2.6.2008 had been stayed by the Commissioner (Appeals) and set aside in a final order. Therefore, the demand confirmed against this order was not sustainable and should be refunded to the appellant.

Regarding the orders dated 31.5.2010 and 20.1.2011, the Tribunal held that since the appellant had made the mandatory pre-deposit and the appeals were pending disposal, the amounts confirmed by these orders were in dispute. Consequently, during the pendency of the appeals, these amounts could not be adjusted against the rebate claim.

The Tribunal set aside the impugned order, holding that the dues against the orders dated 31.5.2010 and 20.1.2011 could not be adjusted against the rebate claim. The appeals were allowed with consequential relief, if any.