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TMI Blog2012 (12) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... amount said to be due from the petitioner had been appropriated by the second respondent. Therefore it is appropriate to set aside the appropriation by the second respondent, towards the alleged liability of the petitioner, from the amount refundable to it, as export duty rebate. Appeal remand back to Tribunal - Writ Petition No.19649 of 2012 - - - Dated:- 28-9-2012 - MR. M. JAICHANDREN J. For Petitioner: Ms. L. Maithili for M/s. Maithili Associates For Respondents: Mr. V. Sundareswaran ORDER Heard the learned counsel for the petitioner, as well as the learned counsel appearing on behalf of the respondents. 2. It has been stated that the petitioner is a private limited company incorporated under the Companies Act, 1956. The petitioner is engaged in the business of manufacturing different varieties of yarns, including acrylic, polyester and viscose yarns, meant for the domestic market, as well as for exports. 3. It has been further stated that the Central Government has issued a number of notifications providing export benefits, as a matter of policy, with a view to encourage exports. Such an exercise has been undertaken for the locally manufactured goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demands made against the petitioner had been confirmed, even though the penalty had been set aside in some cases. Second Appeals had been preferred against the said orders before the Customs, Excise and Service Tax Appellate Tribunal, under Section 86 of the Finance Act, 1994. The adjudged demands were to be deposited before the appeal is taken up for disposal by the Customs, Excise and Service Tax Appellate Tribunal, unless the pre-deposit is waived by the Tribunal, pursuant to the applications for stay filed under Section 35 of the Central Excise Act, 1944. The stay applications filed by the petitioner, under Section 35 of the Central Excise Act, 1944, had been allowed by the Tribunal, by granting unconditional waiver of pre-deposit amounts, as prayed for by the petitioner. However, the applications filed by the petitioner, relating to certain identical orders passed by the Appellate Commissioner, pertaining to the subsequent periods had been made infructuous due to the adjustment of the rebate amounts which were due to the petitioner towards the alleged Central Excise Arrears, by way of the impugned orders. The adjustment of the amounts made by the second respondent, from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad (2012(281) E.L.T. 40 (A.P). 8. The learned counsel appearing on behalf of the petitioner had also submitted that though all efforts had been taken by the petitioner to move the stay petitions before the Customs, Excise and Service Tax Appellate Tribunal, it could not be taken up, as the Tribunal was not sitting, regularly, for a long time. In such cirucsmtnaes, this Court had also granted certain orders protecting the interest of the petitioner. One such order had been passed, by this Court, on 3.12.2004, in W.P.No.6361 of 2012. 9. It has been further stated that the second respondent had been informed about the pendency of the appeal before the Tribunal and that favourable orders had been passed by the Tribunal in similar matters. However, the second respondent had issued the impugned communication, dated 13.6.2012, stating that certain amounts had been adjusted in view of the Central Excise Arrears payable by the petitioner. The second respondent had issued the impugned communication, dated 13.6.2012, enclosing a cheque for a sum of ₹ 28,67,312/-, after adjusting the alleged dues of ₹ 18,32,782/-, against the total rebate claim made by the petitioner f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Customs, Excise and Service Tax Appellate Tribunal. As per Section 35F of the Act, the amount that remained unpaid should be paid by the person preferring the appeal before the Tribunal. Only in cases of undue hardship the petitioner can approach the Tribunal for the waiver of the pre-deposit amount. Even though the petitioner had filed the appeal before the Tribunal during the year 2010, no order of stay had been obtained against the respondents, with regard to the recovery of the amounts due from the petitioner. Further, as per Section 87(a) of the Finance Act, 1994, any amount `payable by a person, under the provisions of the said Act, is not paid, the Central Excise Officer shall proceed to recover the amount due, by one or more of the modes mentioned therein. Accordingly, the rebate earned by the petitioner, by way of refund of excise duty paid by it, had been adjusted towards the amount of service tax due to the government, under the power conferred by Section 87(a) of the Finance Act, 1994, read with Section 11 of the Central Excise Act, 1944. 12. It had also been stated that before the action had been initiated, under Section 87 of the Finance Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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