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2020 (3) TMI 1096 - AT - Central ExciseRecovery of dues - sick company - Wrongful adjustment of sanctioned refund - demand of interest - relevant period starting from 19 March, 2017 (expiry of three months from the date of the order dated 20 December, 2016 passed by the Tribunal) till the date of payment of refund amount or not - HELD THAT - It is not possible to accept this submission of the learned Authorized Representative of the Department. As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18 October 2001 and 23 February 2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the management from recovery of dues which were not disclosed by the old management or not provided for in the package approved by the BIFR. It is not the case of the Department that the dues pertaining to the aforesaid two orders confirming the demands had been disclosed by the Department or the earlier management to the BIFR. The proceedings before the BIFR had not been assailed before any appellate forum. Appeal dismissed.
Issues Involved:
1. Adjustment of sanctioned refund claim against confirmed demands. 2. Compliance with BIFR sanctioned scheme and protection of new management from undisclosed liabilities. Issue-wise Detailed Analysis: 1. Adjustment of Sanctioned Refund Claim Against Confirmed Demands: The Department filed an appeal against the order dated 27 November 2018 by the Commissioner (Appeals), which reversed the Assistant Commissioner's decision to adjust a sanctioned refund claim of ?1,23,72,567/- against confirmed demands. The Assistant Commissioner had sanctioned the refund under Section 11B of the Central Excise Act, 1994 but adjusted it against the confirmed demands. The Commissioner (Appeals) held that this adjustment was incorrect and directed the payment of interest from 19 March 2017 until the refund was paid. The Tribunal noted that the dues related to orders dated 18 October 2001 and 23 February 2001 were not disclosed by the Department or the old management to the BIFR and were not considered in the sanctioned scheme. The BIFR had protected the new management from recovery of such undisclosed dues. Consequently, the Tribunal found no error in the Commissioner (Appeals)’s order and dismissed the Department's appeal. 2. Compliance with BIFR Sanctioned Scheme and Protection of New Management from Undisclosed Liabilities: The records indicated that the respondent company was declared "sick" by the BIFR in 1992, and a rehabilitation scheme was sanctioned. The scheme, modified in 1996 and further revised in 2000, envisaged payment of dues to various statutory authorities, including the Central Excise Department, and fixed the cut-off date as 31 March 2000. The BIFR directed that no claims against the new management should be raised for liabilities not disclosed by the old management or not included in the sanctioned scheme. The Commissioner (Appeals) observed that the liabilities adjudged under orders dated 18 October 2001 and 23 February 2001 were not disclosed by the old management and thus, the new management was protected from these liabilities. The BIFR had repeatedly emphasized that the Central Excise Department should not raise claims against the new management for undisclosed liabilities. The High Court of Jaipur also upheld this protection, stating that the BIFR granted immunity from recovery of arrears pertaining to the period before the cut-off date. The Tribunal concluded that the Department's adjustment of the refund against these undisclosed liabilities was incorrect and upheld the Commissioner (Appeals)’s order, dismissing the Department's appeal. Conclusion: The Tribunal affirmed the Commissioner (Appeals)’s decision, emphasizing that the new management was protected from liabilities not disclosed by the old management or included in the BIFR sanctioned scheme. The Department's adjustment of the refund against such undisclosed liabilities was deemed incorrect, and the appeal was dismissed.
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