2018 (8) TMI 1667 - AT - Central Excise

Appropriation of rebate against the dues - Held that - In an identical case M/S. CHEMPLAST SANMAR LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, TRICHY 2018 (5) TMI 1763 - CESTAT CHENNAI , where the appeal was held in favor of appellant - the appropriation made by the order impugned herein cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appropriation of rebate against dues arising from a previous order.
2. Validity of appropriation during pendency of appeal and stay petition.
3. Interpretation of Board circular and judicial precedents regarding recovery proceedings during appeal.

Analysis:

Issue 1: Appropriation of rebate against dues
The appellants filed a rebate claim under Rule 18 of Central Excise Rules, 2002, for excise duty paid on Monochloro Difluoro Methana HCFC - R11. A show cause notice proposed to adjust the rebate against dues arising from Order-in-Appeal No. 67/2010 dated 30.6.2010. The adjudicating authority sanctioned the rebate and appropriated it against the above demand. The appellant, aggrieved by this, filed an appeal before the Commissioner (Appeals), who upheld the adjudication order. The issue centered around the appropriateness of this action.

Issue 2: Validity of appropriation during pendency of appeal
The appellant's counsel argued that the appeal against Order-in-Appeal No. 67/2010 dated 30.6.2010 had been allowed in favor of the appellant by the Tribunal in a subsequent order. The counsel contended that the appropriation made during the pendency of the appeal and stay petition was not sustainable. Referring to Circular No. 7/90-CX6 dated 2.3.1990 and judicial precedents, including a Supreme Court decision and a High Court ruling, the appellant argued that no recovery proceedings should be initiated during the pendency of an appeal and stay application. The counsel pleaded for setting aside the appropriation based on these grounds.

Issue 3: Interpretation of Board circular and judicial precedents
The Advocate for the appellant relied on the Board circular and legal precedents to support the argument that the appropriation was not valid during the pendency of the appeal and stay petition. The respondent, represented by the AR, contended that since no stay had been granted by the Tribunal, the appropriation was correct. However, the Tribunal, after hearing both sides, held that the appeal in favor of the appellant rendered the appropriation unsustainable. Citing the Board circular and the High Court's decision, the Tribunal concluded that the impugned order could not stand and set it aside, allowing the appeal with any consequential relief.

This detailed analysis of the judgment highlights the issues of appropriation, validity during appeal, and the interpretation of relevant legal provisions and precedents. The Tribunal's decision was based on the appellant's successful appeal and the legal principles governing recovery proceedings during the pendency of an appeal and stay petition.