2018 (9) TMI 23 - AT - Central Excise

Refund claim of amount retained without adjudication - rejection on the ground that till finalization of remand proceedings, refund claim cannot be entertained - Held that - When the matter was remanded by this Tribunal for fresh adjudication, it is the duty of the adjudicating authority to adjudicate the matter at the earliest possible opportunity failing which justice can not be delivered - As the amount was deposited in the year 2007 and after 11 Years, no appropriation of the said amount has been done by adjudication despite the matter was remanded on 08.11.2016 for fresh adjudication. Tthe Revenue cannot withhold the amount in question without any authority/adjudication. Refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
- Rejection of refund claim by Ld. Commissioner (Appeals) due to appropriation of amounts in original order during remand proceedings.
- Challenge of the order before the Tribunal and subsequent refund claim.
- Dispute regarding the retention of the amount paid during investigation without confirmed demand.
- Argument for allowing the refund claim based on lack of confirmed demand and delay in adjudication.
- Opposition to refund claims as premature due to pending adjudication.
- Tribunal's analysis of the facts and duty of adjudicating authority post remand order.
- Comparison with a similar case before the Hon'ble High Court of Delhi.
- Tribunal's decision to direct the adjudicating authority to refund the amount.

Detailed Analysis:
1. The appellant appealed against the rejection of a refund claim by the Ld. Commissioner (Appeals) due to the appropriation of amounts during remand proceedings. The Tribunal noted that the appellant's refund claim of ?8,15,34,612/- was rejected as the amounts were considered appropriated in the original order during the remand process.

2. The case involved an investigation in 2007 regarding alleged clandestine clearance of goods by the appellant. Subsequently, a demand notice was issued based on recovered slips, leading to an order confirming a demand of ?8,25,00,000/-. The appellant challenged this order, leading to a remand by the Tribunal in 2010. However, no fresh decision was made post-remand, prompting the appellant to file a refund claim in 2017.

3. The appellant argued that as there was no confirmed demand, the amount paid during the investigation should not be retained indefinitely. Citing a Delhi High Court case, the appellant contended that without adjudication post-remand, the Revenue cannot withhold the amount, and hence, the refund claim should be allowed.

4. On the other hand, the Ld. AR opposed the refund claims as premature due to pending adjudication. The AR suggested directing the adjudicating authority to expedite the process and consider appropriation if any liability arises.

5. The Tribunal carefully considered both arguments and found that the facts were undisputed. It highlighted the lack of efforts by the department to adjudicate the matter post-remand, emphasizing the duty of the adjudicating authority to act promptly. The Tribunal noted the delay of 11 years since the amount was deposited without appropriation despite the remand order.

6. Referring to a similar case before the Delhi High Court, the Tribunal emphasized that the Revenue cannot withhold the amount without proper authority or adjudication. Consequently, the Tribunal directed the adjudicating authority to refund the amount of ?8,15,34,612/- to the appellant within three weeks from the judgment date.

7. The appeal was disposed of with the Tribunal's decision to refund the amount, emphasizing the necessity for timely adjudication and adherence to legal procedures.

End of Analysis