9911796707
TMI Blog2022 (4) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... bate claim. 2. Brief facts of the case are that the appellant had filed rebate claims for Rs. 32,91,702/- on 12.06.2017. The Adjudicating Authority observed that the appellant has paid duty on an amount, over and above the transaction value, as is evident from ARE-1 and the respective shipping bill. Rebate is required to be restricted to the extent of transaction value as per Section 4 of the Central Excise Act. The appellant have paid duty on invoice value, which includes freight element and other expenses from the factory gate to the destination port. The Adjudicating Authority took into notice the report of the Range Officer dated 03.03.2017 and 28.06.2017, that regular demands are being issued to the appellant regarding non-payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 8,12,603/- from the amount of sanctioned rebate, the appellant preferred appeal before the Commissioner (Appeals). 5. Vide the impugned order-in-appeal, the Commissioner (Appeals) was pleased to dismiss the appeal, being after 45 days beyond the limitation period, and accordingly was pleased to reject the appeal being beyond the power to condone the delay. Being aggrieved, the appellant have preferred appeal before this Tribunal inter alia on the ground that the Commissioner (Appeals) has dismissed the appeal without considering the ground for delay. The appellant had stated in their condonation of delay application, that the delay was circumstantial. The order related to adjustment of certain portion of sanctioned rebate and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort payment and in the facts there is no case of fraud, suppression of facts etc., demand could have been raised only under the normal period. The appellant also relies on the ruling in their own case of this Tribunal, being Final Order No. 53007 - 53008/2018 dated 28.09.3028, where also similar adjustment was made from the rebate claim of the un-adjudicated interest amount. This, Tribunal observing that for collecting any interest amount appropriate proceedings are to be initiated by issuing of show cause notice. In absence of such proceedings or any confirmation of demand against the assessee, adjustment from refund amount or rebate amount is neither justified nor provided in law. Similar view was taken by this Tribunal in the case of Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable to the Central Government under any of the provisions of this Act or the rules thereunder, the Officer empowered to levy such duty or require to the payment of such sums, may deduct the amount so payable, from any money owing to the person from whom such sums may be recoverable or due, which may be in his hands or under his disposal or control or may be in the hands or under disposal or control of such other officer. 10. From a plain reading of the provisions of Section 11(1), I find that the Central Excise Officer is empowered to adjust only the unpaid adjudicated dues. As Section 11(1) also empowers the Central Excise Officer to recover the dues, even by way of attachment and sale of excisable goods, and if the same are not recover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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