2009 (4) TMI 198 - HC - Central Excise

Summary

Issues involved:
1. Appropriation of refund amount by the Department.
2. Jurisdiction of the Commissioner (Appeals) to issue directions.
3. Legitimacy of observations made by the Commissioner (Appeals).
4. Entitlement of the Department to appropriate the amount.

Analysis:

Appropriation of refund amount by the Department:
The respondent sought a refund of Rs. 57,320/- after an order against their interest was set aside in appeal. The Deputy Commissioner directed the appropriation of Rs. 7,626/- towards a previous demand and the rest against other demands. The respondent appealed this direction, leading to subsequent appeals and dismissals. The High Court emphasized that if the liability has been discharged by deposit, appropriation cannot be made. The Department cannot retain the amount deposited by the respondent to discharge the liability while also seeking to appropriate the refund amount. The Court highlighted the need for the Department to act in accordance with the law and not act dishonestly in retaining or recovering money.

Jurisdiction of the Commissioner (Appeals) to issue directions:
The Commissioner (Appeals) rejected the appeal as time-barred but made observations regarding the compliance with previous demands and the possibility of issuing a refund. The appellant argued that the Commissioner exceeded jurisdiction by issuing such directions. The Court noted that the Commissioner should consider the observations and pass a final order within three months, providing the respondent with an opportunity to demonstrate why the amount should not be appropriated due to earlier deposits.

Legitimacy of observations made by the Commissioner (Appeals):
The appellant contended that the Commissioner's observations were contrary to the decision on the time bar issue and beyond the legitimate jurisdiction. However, the respondent's counsel argued that government departments should not take undue advantage of technicalities and that the Department should not appropriate the refund if the liability has been discharged by depositing the amount.

Entitlement of the Department to appropriate the amount:
The High Court clarified that if the liability remains, the Department may direct appropriation to clear the liability. However, if the liability has been discharged by deposit, appropriation cannot be made. The Court emphasized that the Department cannot both retain the deposited amount and appropriate the refund. The judgment dismissed the petition, instructing the Department to pass a final order within three months, considering the observations made by the Commissioner (Appeals) and providing an opportunity for the respondent to present their case regarding the appropriation of the amount.