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TMI Blog2015 (3) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... As a result of audit objection arrears cannot arise even if it is accepted and paid. If the full amount is not paid by an assessee, recovery proceedings have to be started in accordance with law. Adjustment from the amount available with the department is not one of the recognized mode of recovery of arrears which is not confirmed and no demand has been issued. - Refund allowed - Decided in favor of assessee. - ST/2158/2010-SM - Final Order No. 20663/2015 - Dated:- 6-3-2015 - Shri B.S.V. Murthy, Member (T) Shri B. Venugopal, Advocate, for the Appellant. Shri A.K. Nigam, AR, for the Respondent. ORDER Nobody is present on behalf of the appellant. The appeal is against the decision of the lower authorities wherein refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultancy services to their overseas customers for the period 2005-06 and 2006-07 and paid Service Tax on the said services exported. (ii) The appellants had availed Cenvat credit for the Service Tax amount of ₹ 1,13,50,331/- paid on the said output services. (iii) As the said service was in the nature of output service the audit objected with regard to the availment of Cenvat credit of the Service Tax paid. (iv) on being pointed out by the audit, the assessee had reversed the entire service tax credit amount vide RG.23A Part II Sl. Nos. 4066/29-2-2008; 4067/29-2-2008 4068/29-2-2008. (v) The audit observed that, the assessee had not paid the interest, although they reversed the irregular Cenvat credit am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such information shall not serve any notice under sub-section (1) in respect of duty so paid : Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful misstate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e me, what has been stated is only that the arrears has arisen as a result of audit objection. As a result of audit objection arrears cannot arise even if it is accepted and paid. If the full amount is not paid by an assessee, recovery proceedings have to be started in accordance with law. Adjustment from the amount available with the department is not one of the recognized mode of recovery of arrears which is not confirmed and no demand has been issued. 5. At this juncture, learned AR relied upon Section 11 of Central Excise Act, 1944 to submit that any confirmed demand can be adjusted out of the amounts due. But for this purpose, it is necessary for the officer to indicate that the demand is a confirmed one, which can be done only by q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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