National Engineering Industries Ltd. Versus CGST, Jaipur
Central Excise
2019 (3) TMI 177 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 29-1-2019
Excise Appeal No. E/51554/2018-ST [SM] – Final ORDER NO. 50246/2019
Central Excise
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Ms. Priyanka Goel, Advocate
Present for the Respondent: Mr. P.R. Gupta, D.R.
ORDER
PER: RACHNA GUPTA
Present appeal is preferred against the Order-in-Appeal No.129 dated 19.03.2018. After hearing both the parties, it is observed that the narrow compass of adjudication of present appeal is as to:
Whether Department can suo moto adjust the amount of sanctioned refund claim to another demand against the appellant.
2. Order in Appeal has answered the aforesaid query in affirmative. While challenging the said decision, ld. Counsel for appellant has relied upon M/s. Nirmal Products (Unit-I) vs. CCE, Jaipur reported in 2017 (10) TMI 5 -CESTAT, New Delhi.
3. Per-co
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very of sums due to Government.
In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made there-under including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums [may deduct or require any other Central Excise officer or a proper officer referred to in section 142 of the customs act, 1962 (52 of 1962) to deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control or may be in the hands or under disposal or control of such other officer, or may recover the amount] by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so
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on Board Circular No. 967 dated 01.01.2013 but as quoted in the said para itself, the Circulars speaks about the recovery to be initiated within 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition, whichever is earlier. But it is observed that by the time, the impugned order in appeal was passed. Since the deposit at the rate of 7.5% is made mandate, the question of filing of any stay applications is absolutely redundant concept.
8. Hence, I am of the opinion that Commissioner (Appeals) has committed an error while relying upon such direction of the Board, which was technically as well as practically of no relevance at the time of impugned order. In view of entire discussion, it is held that the Department was not entitled to suo moto adjust the refund claim. I draw my support from Nirmal Products (supra) as relied upon by the appellant wherein it was held that refund cannot be adjusted against the demands which are subjudice and Section 11
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