Custom, Excise & Service Tax Tribunal
M/S.Aksh Optifibre Ltd vs Cce & St, Jaipur-I on 24 June, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT IV
Excise Appeal No.E/54497/2014 EX. [SM]
[Arising out of Order-in-Appeal No.48-49(VC)CE/JPR-I/2014 passed by the Commissioner (Appeals), Central Excise Commissioenrate, Jaipur-I]
Excise Appeal No.E/ 54496 /2014 EX. [SM]
[Arising out of Order-in- Appeal No.48-49(VC)CE/JPR-I/2014 passed by the Commissioner (Appeals), Central Excise Commissioenrate, Jaipur-I]
Excise Appeal No.E/54481/2014 EX. [SM]
[Arising out of Order-in- Appeal No.50(VC)CE/JPR-I/2014 passed by the Commissioner (Appeals), Central Excise Commissioenrate, Jaipur-I]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1. Whether Press reporters may be allowed to see the
order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in
any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
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M/s.Aksh Optifibre Ltd. Appellant
Vs.
CCE & ST, Jaipur-I Respondent
Present for the Appellant : Shri Mayank Garg, Advocate Present for the Respondent: Shri Pramod Kumar, DR Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) Date of Hearing/Decision: 24.06.2015 Final ORDER NO.54142-54144/2014 PER: S.K. MOHANTY
Brief facts of the case are that the appellant is engaged in the manufacture of Optical Fibre Cable, falling under Chapter Heading No.9001 of the First Schedule to the Central Excise Tariff Act, 1985. During the period November and December' 2012, the appellant had filed the rebate claim applications under Rule 18 of the Central Excise Rules, 2002 on exportation of the said finished goods. Upon verification of the rebate claim application together the export documents, the original authority has sanctioned the rebate claim, but ordered for adjustment of the rebate claim amount against the arrears/ Govt. dues pending realization from the appellant. Appropriation/adjustment of the rebate amount towards the Government dues was agitated by the appellant before the ld. Commissioner (Appeals). The appeal of the appellant was rejected by the Commissioner (Appeals) vide the impugned order dated 23.04.2014, holding that the adjudicating authoritys order was in conformity with the provisions of Section 11 of the Central Excise Act, 1944, which empowered the Central Excise officers to deduct the sums due to the Government, from any money owing to the person, from whom such sums may be recoverable. It has further been held that once the amount of confirmed demand has been adjusted against the amount of refund sanctioned to the appellant, such refund of amount is deemed to have been given to the appellant, to the extent the same was adjusted towards demand. Feeling aggrieved with the said order, the appellant has preferred the present appeal before this Tribunal.
2. Heard the ld. counsel for both the sides and examined the case records.
3. The short question involved in this appeal for consideration by this Tribunal is, as to whether, the rebate amount can be adjusted/appropriated for the Central Excise duty liability, which is under contest and the issue is subjudice before the Appellate Authority.
4. I find that the case in hand is squarely covered by the decision of the Bangalore Bench of this Tribunal in the case of Voltas Ltd. Vs. Commissioner of Central Excise, Hyderabad-II, reported in 2006 (201) ELT 615 (Tri.-Bang.). The relevant paragraph in the said decision is extracted herein below:-
9.?Section 11 is actually a provision for recovery of sums due to Government. There are some assessees who do not pay promptly the Government dues. In order to deal with such recalcitrant assessees, the above provision is made and it enables the proper officer to deduct the amount payable from any money owing to the assessee. In this case, the refund is actually due to the appellant. But the appellants by virtue of certain Orders-in-Original owed money to the Government. The important thing to be noted is that these amounts decided by the Orders-in-originals were not final. Every Order-in-Original can be appealed. Therefore, at the first stage of confirmation of a demand, no finality has been reached. To put in other words, those demands cannot be called as arrears. There is a possibility that these demands could be set aside by the Commissioner (A) or the Tribunal or any other judicial forum. That is why large number of decisions hold that refund cannot be adjusted against the demands which are subjudice. In the present case, the action of the authorities in adjusting the refund is against the legal provisions. Section 11 should be involved only when the demands have reached finality and should not be invoked even at the initial stage. Section 11BB provides interest for delayed refunds. This is squarely applicable to the present case. The Commissioner (A) has not at all given any reason as to why the said section is not applicable. In view of the above findings, we allow the appeal with consequential relief."
8. In view of the settled position of law, the authorities below are not justified in adjusting/appropriating the amount of rebate towards the demand confirmed in the adjudication order referred above. Therefore, the impugned order is set aside and the appeals are allowed with consequential relief.
(Dictated and pronounced in the open Court) (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
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