J.K. Cotton Spinning And Weaving Mills ... vs Collector Of Central Excise on 31 January, 1989
It is curious that at this stage also the appellants in their letter dated 11.12.1987 did not intimate to the department that the amount paid by them in pursuance of stay order dated 15.3.1983 be applied only to the discharge of excise duty for the period from 6.12.1981 to 15.3.1983. From the contents of the letter dated 11.12.1987 which was pressed into service by the learned Counsel for the appellants in support of his contention, it can be implied that the duty paid in terms of the stay order was to be applied to the discharge of a particular duty i.e. to say excise duty payable for the period from 6.12.1981 to 15.3.1983 only. Under these circumstances when the appellants had omitted to intimate and there are no other circumstances indicating that the duty so paid was to be applied only to the demand for the period from 6.12.1981 onwards the Adjudicating Authority was well within its discretion to apply it to the excise duty actually due and payable from the appellants for the period from 6.11.1980 to 5.12.1981 whether its recovery was or was not barred by limitation. Even assuming with the learned Counsel for the appellants that the duty paid for the period from 6.11.1980 to 15.3.1983 in terms of the stay order of the Supreme Court dated 15.3.1983 could not be appropriated till the passing of the adjudication order and the duty so paid remained in the hands of the department unappropriated, still in terms of Section 61 of the Contract Act the duty so paid could be applied in discharge of the duty due in order of time, whether the same was or not barred by limitation, because in that case it could be said that neither party made any appropriation earlier.