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TMI Blog2010 (1) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... in entry No. 18 dated 22-9-2005. now the allegation of next show cause notice is that the appellants had suo motu taken credit of Rs. 2,50,000/- without prior sanction from competent authority. Held that- non- compliance of obligation by assessee established. Such action by department justified. - E/4023/2006-SM(BR) and 3212/2007-SM(BR) - 187-188/2010-SM(BR)(PB), - Dated:- 7-1-2010 - Justice R.M.S. Khandeparkar, President Written submission, for the Appellant. <?xml:namespace prefix = st2 /> Shri I. Baig, SDR, for the Respondent. [Order (Oral)]. - Since common questions of law and facts arise in both these appeals, they were taken up for hearing together and are being disposed of by this common order. 2. The appellants under their submissions dated 16-9-2008 has informed the Tribunal that the Tribunal may decide the matters on the basis of the factual position as revealed from the records and it is not possible for the appellants to arrange personal appearance at the time of hearing of the matter. The matters were accordingly taken up for hearing and I have heard learned DR and perused the records with the assistance of the learned DR. 3. As fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeal before the Commissioner (Appeals), Raipur was ultimately allowed in favour of the appellants under order dated 12-8-2005. Under letter dated 22-9-2005, the appellants intimated that the deposit of Rs. 2,50,000/- made through TR challan could be utilized by crediting in PLA in entry No. 18 dated 22-9-2005. It was revealed that the appellants had suo motu taken credit of Rs. 2,50,000/- without prior sanction from competent authority. Further, the appellants applied for refund of the amount of Rs. 2,50,000/- under their letter dated 31-8-2005. A show cause notice dated 7-2-2006 came to be issued to the appellants requiring the appellants to show cause as to why the refund should not be rejected on the ground that they had taken the credit of the said amount suo motu and had again applied for refund of the amount, that why the amount of the credit utilized by them in excess of actual balance in their account should not be recovered, that why the facility of monthly payment of duty should not be withdrawn, that why the penalty under Rule 25 should not be imposed and that why the interest at the appropriate rate should not be recovered. 6. The appellants contested the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner while observing that it is evident from the facts on record that the appellants had taken suo motu credit of Rs. 2,50,000/.- without sanction from proper officer and Circular dated 2-1-2002 nowhere permits any such refund suo motu. It merely stated that pre-deposit amount is liable to be returned on a simple request. It was also observed that adjustment of confirmed demand which was pending against the appellants was justifiably adjusted by the original authority in consonance with Section 11 of the said Act. 9. As regards the appeal by the Department, the Commissioner (Appeals) by his order modified the order of the Assistant Commissioner as stated above while holding that it is on record that the appellants had a closing balance of Rs. 91,553/- in the month of September, 2005 and they took credit of Rs. 2,50,000/- on their own volition and utilized the same for payment of duty on the goods cleared during the said month. In the absence of aforesaid credit, the appellant did not have sufficient balance in their account current to discharge the duty liability on the goods cleared during the month of September, 2005. Considering the decision of the Tribunal in the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es payable with interest at the rate prescribed. 7. For that the CE Authorities have gone beyond its competence and jurisdiction to adjust some other disputed demand and also interest charges on unfounded reasons, from out of the pre-deposit amount. 8. For that it has been very clearly clarified by the CBEC that the pre-deposit is liable to be refunded against party's request through a simple letter which the lower Authority ought to have abided by. 9. For the impugned purported Order is not only vague but also not in consonance with the facts or merit of the case in as much as neither the Original Authority nor the lower Appellate Authority took into account that pre-deposit amount was deposited twice and hence not a case of any suo motu utilization of pre-deposit amount through PLA in as much as there is absolutely no merit in the instant Order-in-Appeal, being not a speaking Order and hence having no merit, liable to be quashed and/or set aside". 11. Only point which arises from the above grounds of the challenge to the orders is whether the amount deposited in terms of stay order, on having succeeded in the appeal, can be retained by the Department or sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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