2023 (10) TMI 869 - AT - Central Excise

Appropriation of refund of pre deposit sanctioned to the Respondent, against another demand where stay has been granted and pending for more than 180 days - HELD THAT - The issue is no loner res integra as per the decision of Hon ble Punjab and Haryana High Court in the case of PML INDUSTRIES LTD. VERSUS CCE. 2013 (4) TMI 101 - PUNJAB AND HARYANA HIGH COURT , which has been affirmed by the Hon ble Supreme Court in COMMISSIONER VERSUS PML INDUSTRIES LTD. 2016 (10) TMI 728 - SC ORDER , wherein the Hon ble High Court held that The condition of vacation of stay for the inability of the Tribunal to decide the appeal is burdening the assessee for no fault of his. Such a condition is onerous and renders the right of appeal as illusory. An order passed by a judicial forum is sought to be annulled for no fault of assessee. Thus, there are no arrears against the Respondent so as to appropriate the refund. Hence, the appeal filed by the department has become infructuous and is accordingly dismissed.

Summary

Issues involved:
The issue involved pertains to the refund of pre-deposit with regard to final orders passed by the Tribunal and the appropriation of the refund against a demand where stay has been granted by the Tribunal.

Summary:

Issue 1 - Appropriation of refund against a demand with stay:
The department appealed against the Order-in-Appeal regarding the refund of pre-deposit, which was appropriated against a demand where stay had been granted. The Commissioner (Appeals) Ranchi allowed the appeal, stating that the stay order remains valid until the appeal's disposal. The department challenged this decision.

Issue 2 - Validity of appropriation of refund:
The main issue was whether the department was correct in appropriating the refund against a demand with a stay exceeding 180 days. The Respondent argued that the appropriation was incorrect as the appeal against the demand had been settled in their favor by the Tribunal.

Issue 3 - Legal precedent and decision:
The Tribunal referred to the decision of the Hon'ble Punjab and Haryana High Court, affirmed by the Supreme Court, which emphasized the burden imposed on the assessee due to automatic vacation of stay after 180 days. The Tribunal noted that the appeal against which the refund was appropriated had been settled in favor of the Respondent, rendering the department's appeal infructuous.

Conclusion:
Given that the appeal against which the refund was appropriated had been settled in favor of the Respondent, the Tribunal held that the department's appeal had become infructuous and dismissed it accordingly.