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TMI Blog2019 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... le in law - Further, once the demand has been set aside, the amount appropriated by the Department is liable to be refunded to the appellants and there is no justification for retaining the said amount by the Department - Further, when unlawful demand has been set aside, the Department does not have any authority to retain the amount appropriated towards the said unlawful demand. The decision of the Tribunal in the case of ISPAT TRADERS VERSUS COMMISSIONER OF CUSTOMS, JAMNAGAR [ 2010 (9) TMI 346 - CESTAT, AHMEDABAD] is very much applicable in the present case wherein the Tribunal has held that appropriation of the amount out of the refund amount payable in cash towards the demand confirmed in the said Order-in-Original is only a pre-dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT credit of ₹ 1,03,437 with interest and proposed to impose penalty under Rule 15 of CCR, 2004. After following the due process, the original authority vide order dated 29.05.2012 confirmed the denial and recovery of CENVAT credit with interest and also imposed equal penalty. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 26.08.2013 set aside the order and allowed the CENVAT credit subject to verification of Service Tax paid on input service and its accounting in their books of account. In the meantime, the appellant had filed refund claim seeking refund of unutilized credit under Rule 5 of CCR, 2004 for the quarters October 2011 to December 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the impugned order is contrary to the facts and the evidences on record. He further submitted that it is an admitted fact that the Department has permitted an amount of ₹ 2,20,836/- towards the demand, interest and penalty confirmed in Order-in-Original dated 29.05.2012. It is also an admitted fact that the Department vide Order-in-Original dated 01.09.2015/24.11.2015 has dropped the proceedings initiated for denial of CENVAT credit of ₹ 1,03,437/-. He further submitted that during the pendency of appeal before the Commissioner (Appeals), the original authority has wrongly appropriated the amount of ₹ 2,20,836/- which is nothing but dues discharged by the appellant towards wrongful demand confirmed against them. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, Learned AR defended the impugned order and submitted that since the appellant has not challenged the appropriation and there was no direction in the remand order for sanctioning and returning the refund amount therefore that appropriation has become final and the appellant cannot claim the refund of the same. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the Department during the pendency of the appeal before the Commissioner against the Order-in-Original dated 29.05.2012 has appropriated the amount of ₹ 2,20,836/- which was liable to be paid in cash to the appellant under Rule 5 of CCR, 2004. Further, I find that finally that Order-in-Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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