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TMI Blog2024 (1) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... LDINGS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-II (VICE-VERSA) [ 2019 (5) TMI 1341 - CESTAT CHANDIGARH ], Chandigarh bench held the demand itself has been set aside by this Tribunal, therefore, the order of appropriation is not sustainable and the same is set aside. The appeal filed by the Revenue is dismissed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Shri Sarweshwar T. Khairnar, Authorized Representative for the Revenue Shri Atul Gupta, Advocate Shri Prakhar Shukla, Advocate for the Respondent ORDER SANJIV SRIVASTAVA : This appeal has been filed by the Revenue against Order-in-Appeal No.NOI/EXCUS/000/APP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue and Shri Atul Gupta, Shri Prakhar Shukla learned Advocates for the Respondent. 4.1 We have considered the impugned order alongwith submissions made in appeal and during the course of argument. For ease of references following date chart giving crucial events are listed is as follows : - 18.10.2012 Order-in-Original No.33/Commissioner/Noida/2012-13 confirmed demand of Service Tax of Rs.2,33,54,306/- 30.10.2012 Order-in-Original No.37/Commissioner/Noida/2012-13 confirmed demand of Service Tax of Rs.3,78,49,744/- 26.03.2013 Respondent filed refund claim 19.09.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this adjustment has observed as follows:- 6. Miscellaneous Application No.61437/2013 is filed for. Miscellaneous Application No.61437/2013 is filed for a declaration that adjustment of the demand raised consequent on the adjudication order dated 30-12-2012 (subject matter of the substantive appeal) from the amounts payable to the appellant under refund orders passed, vide the orders dated 17-9-2013 and 4-10-2013 be declared void and inoperative and to grant restitutive relief by directing Revenue to refund the amounts sanctioned by way of refunds. During the pendency of the appeal and prior to adjudication of the application for waiver of pre-deposit, certain refund claims presented by the petitioner/appellant (in respect of unutilized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal against such order is provided under the Act to the Commissioner (Appeals). We are not passing any order directing refund but have only declared that the petitioner is entitled to refund ex debito justitia. 4.4 As the Order No.33/Commr./Noida/2012-13 has been set aside by us as stated above we find that this appeal has become totally infructuous and needs to be dismissed on this account itself. 4.5 In case of Pepsico India Holdings Pvt. Ltd. [2019 (369) E.L.T. 1393 (Tri. - Chan.)], Chandigarh bench held as follows: 10. Now, we come to the appropriation of the refund. We find that the demand itself has been set aside by this Tribunal, therefore, the order of appropriation is not sustainable and the same is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 512 (Tri.-Del.) and Jay Kay Synthetics - 2002 (145) E.L.T. 718 (Tri.-Del.) held that before appropriation of refund towards any arrears due, show cause notice/personal hearing is required. In the present case, I find the appellants were not even issued a simple intimation regarding proposed appropriation. Further, the Tribunal in Voltas Ltd. - 2008 (9) S.T.R. 591 = 2006 (201) E.L.T. 615 (Tribunal) 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 35F on payment of mandatory pre-deposit. The amount in excess of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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