2018 (8) TMI 1667 – CESTAT CHENNAI – TMI – Appropriation of rebate against the dues – Held that:- In an identical case M/S. CHEMPLAST SANMAR LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, TRICHY [2018 (5) TMI 1763 – CESTAT CHENNAI], where the appeal was held in favor of appellant – the appropriation made by the order impugned herein cannot sustain – appeal allowed – decided in favor of appellant. – Appeal No. E/40030/2013 – Final Order No. 41675/2018 – Dated:- 30-5-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Ms. S. Nandita Das, Advocate for the Appellant Shri R. Subramaniam, AC (AR) for the Respondent ORDER Brief facts are that the appellants filed rebate claim for ₹ 4,81,194/- under Rule 18 of Central Excise Rules, 2002 in r
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allowance of CENVAT credit on MS angles, MS plates, MS sheets, DR coils etc. The said appeal has been allowed in favour of the appellant vide Final Order No.41674/2018 dated 30.5.2018 thereby setting aside the Order-in-Appeal No. 67/2010 dated 30.6.2010. Thus, the appropriation of the amount in consequence of the above order is no longer sustainable. She submitted that the Appeal No. E/583/2010 was field by the appellant along with stay petition before Tribunal. The appropriation was done during the pendency of the appeal as well as stay petition. The Board vide Circular No. 7/90-CX6 dated 2.3.1990 has clarified that no recovery proceedings shall be taken when the appeal and stay petition is pending. The Hon ble Apex Court in the case of Un
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vide Final Order No.41674/2018 dated 30.5.2018. Therefore, the appropriation made by the order impugned herein cannot sustain. Further, the Board circular has clarified that no recovery proceedings shall be taken when the appeal and stay applications are pending before the Tribunal. The Hon ble High Court of Madras also in the case relied upon by the ld. counsel has held that the department should wait for reasonable period before initiating recovery proceedings. Thus, I am of the view that the impugned order cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief, if any. (Operative portion of the order was pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management
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