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TMI Blog2016 (7) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... tt. Commissioner with applicable interest , if any. - Decided in favor of assessee. - Excise Appeal No.E/51167/2016-EX(SM) - Final Order No.52360/2016 - Dated:- 5-7-2016 - SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) Rep. by Shri M. Chauhan, C.A. for the appellant. Rep. by Shri S. Nunthuk, AR for the respondent. ORDER Per B. Ravichandran: The appellant filed a refund claim of ₹ 3,88,429/- on 24.3.2014 in consequence of a favourable order by Commissioner (Appeals). The said claim was processed and duly sanctioned by the jurisdictional Asstt. Commissioner vide his order dated 13.06.2014. However, after sanctioning refund, he ordered appropriation of the said amount against confirmed demand pending against the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the provisions of Section 35 F, no coercive measures for recovery of balance amount i.e. amount in excess of 7.5% deposited by the appellants is legally tenable. This has been clarified by the Board s Circular dated 16.09.2014. As such, he pleaded for payment of refund already sanctioned with interest. 3. Ld. AR reiterated the findings of the lower authorities. He further stated that at the time of appropriation, the appellant did not produce any stay order against the confirmed demand and as such, the original authority has followed the Boards instructions dated 1.1.2013 and ordered such appropriation. 4. Having heard both the sides and on perusal of the appeal records, I find that at the time of appropriation by the Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued a simple intimation regarding proposed appropriation. Further, the Tribunal in Voltas Ltd. 2008 (9) STR 591 examined the scope of applicability of Section 11 to recover the sums due to Government. It was held that only after finality of the appeal proceedings, the dues become arrears. In the present case, the appeal is pending before the Tribunal as per the amended provisions of Section 35 F on payment of mandatory pre-deposit. The amount in excess of such pre-deposit cannot be collected coercively. 6. Considering the above discussions and analysis, I find the impugned order is not justifiable and accordingly set aside the same. The appellant is eligible for refund of full amount as originally decided by the jurisdictional Asstt. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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