M/S. Dsm Anti Infectives India Ltd vs C.C.E. & S.T. Chandigarh-Ii
- CitationAppeal No. ST/1869/2011-ST(SM)
Ratio decidendi
The rule this decision rests on
The adjudicating authority, having been informed that the penalties imposed on the assessee were under challenge before the Tribunal with a stay application pending, could not adjust those penalty amounts against the assessee's rebate claim; such adjustment, made while the stay was pending, was not justified. Where the Tribunal has granted a stay against the imposition of penalty, and the amount adjusted from the assessee's rebate claim was thereby unwarranted, the assessee is entitled to refund of the amount so adjusted, together with interest, and the adjudicating authority has no right to retain it, particularly where the penalty has in the meantime been set aside in one of the appeals.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.63/CE/Appeal/CHD-11-2011 dated 23.06.2011 by the Commissioner of Central Excise (Appeals), Chandigarh].
For approval and signature:
Honble Mr Ashok Jindal, 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?
M/s. DSM Anti Infectives India Ltd. .Appellants
Vs.
C.C.E. & S.T. Chandigarh-II .Respondent
Appearance:
Shri Ashok Dhingra, Advocate for the Appellants
Shri G.R. Singh, DR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing: 19.01.2015
FINAL ORDER NO.50179/2015-ST(SM)
Per Ashok Jindal:
Appellant is in appeal against the impugned order.
2. The facts of the case are that the appellant is a manufacturer of Bulk Drugs and exporting the same. As the appellant is exporter, therefore there is some unutilized Cenvat Credit accumulated in Cenvat Credit account. Therefore, they filed an application under Rule 18 of the Cenvat Credit Rules 2004 for rebate claim of the Cenvat Credit lying unutilized in their Cenvat Credit account. While sanctioning their rebate claim, it was found by the adjudicating authority that the appellant has not paid penalties against some orders passed by the adjudicating authority imposing penalty on the appellant. The appellant prayed at that time that the orders demanding penalties on the appellant are in challenge before this tribunal. Therefore, till the stay application is decided by this Tribunal no recovery proceedings should be initiated. Despite that, the amount of penalties were adjusted against the rebate claim of the appellant. Thereafter, this Tribunal granted unconditional waiver for pre-deposit of the penalties which have been adjusted by the Adjudicating Authority. Thereafter, after obtaining the stay appellant filed the refund claim of the amount of penalties adjusted from the rebate claims. The said refund was rejected by both the lower authorities. Therefore, appellant is before me.
3. It is the contention of the ld. Counsel for the appellant that in one of the case penalty imposed on the appellant has been set aside by this Tribunal vide order dated 25.03.2014 and for the rest of the matters appeals are pending before this Tribunal but appellant is having unconditional waiver of pre deposit. In these circumstances, the impugned order is required to be set aside and refund of the appellant for the penalties adjusted be given to them.
4. On the other hand Ld. AR prayed that this appeal be clubbed with the pending appeals, against the order of imposing penalty on the appellant. Therefore, final result would come out and if the amount is required to be refunded to the appellant, that will be refunded to the appellant.
5. Heard the parties. Considered the submissions.
6. In this case when the appeals / stay applications were pending before this Tribunal for consideration, the adjustment were not required to be done by the Adjudicating Authority. Although same has been done. The appellant has obtained stay order from this Tribunal against the imposition of penalty on the appellants, in those circumstances, the refund claim sought by the appellant was required to be sanctioned immediately. Same has not been done. Moreover till date in one of the appeal, the appellant has got favorable order from this Tribunal by setting aside the penalty of the appellant. Therefore, the adjudicating authority have no right to keep the amount of the appellant with them.
7. In these circumstances, I direct the adjudicating authority to grant the refund along with interest to the appellant within 30 days from receipt of this order.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
ST/1869/2011-ST(SM)
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