2019 (3) TMI 177 – CESTAT NEW DELHI – TMI – Suo moto adjustment of sanctioned refund against the demand – appeal against the order is still pending adjudication – Held that:- The demand which has got setoff vide the sanctioned refund claim has not yet attained finality. The only provision available with the Department to recover the sums due to the Government is Section 11 of Central Excise Act, 1944.
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Bare perusal of section 11 makes it clear that only such sum is liable to be recovered in such manner, which is payable by the assessee to the Government – In the present case, since the amount qua which the refund has been adjusted is not finally held as being payable, the demand confirmed been already sub-judiced before the competent authority, to my opinion, Department was not entitled to recover the same. The question of suo moto adjusting the sanctioned refund qua the said demand therefore does not arise.
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The Commissioner (Appeals) has committed an error while relying up
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Jaipur reported in 2017 (10) TMI 5 -CESTAT, New Delhi. 3. Per-contra, ld. D.R. has justified the impugned order laying emphasis on para 6 thereof. 4. After hearing both the parties and perusing the record, it is observed that following are apparently the admitted facts on record: (1) Appellant was entitled for the refund claim as has been sanctioned vide Order in Original No.214 dated 30.10.2013 and as far as the sanction of refund claim is concerned the same has been upheld by the appellate authority as well. (2) However, the sanctioned refund has suo moto been adjusted against the demand as has been confirmed vide Order-in-Original dated 31.07.2012. (3) That the appeal against said order dated 31.07.2012 is still pending adjudication. 5. These admitted facts make it clear that the demand which has got setoff vide the sanctioned refund claim has not yet attained finality. The only provision available with the Department to recover the sums due to the Government is Section 11 of Centra
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ng to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. 6. The bare perusal makes it clear that only such sum is liable to be recovered in such manner as mentioned above, which is payable by the assessee to the Government. In the present case, since the amount qua which the refund has been adjusted is not finally held as being payable, the demand confirmed been already sub-judiced before the competent authority, to my opinion, Department was not entitled to recover the same. The question of suo moto adjusting the sanctioned refund qua the said demand therefore does not arise. 7. Though in para 6 of the O
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