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TMI Blog2016 (1) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... - DEcided against revenue - Appeal No. E/1674/10 - Final Order No. A/3886/2015-WZB/SMB - Dated:- 18-11-2015 - M. V. Ravindran, Member (J) For the Appellant : Shri Sanjay Hasija, Supdt. ( AR ) For the Respondent : Shri J H Motwani, Adv ORDER Per M V Ravindran This appeal is filed by the Revenue against Order-in-Appeal No. M-I/AV/172/2010 dated 17.8.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai-I. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the adjustment of amounts due to the respondent against confirmed dues. 4. The respondent were visited by the authorities and on such survey it was noticed that there was short payment of duty and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not debar the Revenue from adjusting the refund against dues recoverable by the Central Government. He would also rely upon the judgment of the Tribunal in the case of Mahavir Steel Rolling Mills Vs. Commissioner of Central Excise Hyderabad - 2010 (251) ELT 69 (Tri-Bang) for the same proposition, as also in the case of Global Stores (P) Ltd. - 2009 (236) ELT 149 (Tri-Del). 6. Ld. Counsel would submit that the issue is no more res integra as Hon'ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore-III Vs. Stella Rubber Works (Unit-II) - 2012 (275) ELT 04 (Kar) was considering the issue which is identical to the case before this Bench. He submit that in para 4, the Hon'ble High Court has laid down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriation is not in order and the amount of ₹ 10 lakhs should have been sanctioned in cash. 9. The adjudicating authority has then held that no interest is liable to be paid as the amount was not duty but a deposit made by their own volition. I find that all amounts refunded by the Central Excise department are governed by the provisions of Section 11B. Such amount whether paid as a pre-deposit or whether as duty are all governed by the provisos of Section 11B. Had the investigations and proceedings in respect of which the said amount had been paid done successfully this amount would certainly have been treated as duty. Therefore the provisions of Section 11B and subsequently those of Section 11BB apply to all refunds under Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d recovery of certain amounts, if any person owing money to the assessee, the revenue may proceed against such person and recover the duty and other sums due to the Government. It is in the nature of garnishee proceedings. The said provision does not contemplate adjustment of monies due to the assessee towards the amount due to the revenue. Therefore reliance placed on the said provision does not help the revenue. Apart from the said provision, the learned counsel was not able to point out any other provision which enables the revenue to adjust the amounts due to them as against the amounts due by them to the assessee. In fact reliance is placed on the judgments of CESTAT which gives an impression that adjustment is permissible. Such adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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