M/S. Iti Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No. 130/2013-C.E.
Ratio decidendi
The rule this decision rests on
The stay application is infructuous and Section 35F does not apply where the refund already sanctioned on merits was appropriated against demands that were pending in appeal before the Tribunal. Where the adjudicating authority has sanctioned a refund and the amount was adjusted against demands under appeal, and the Tribunal has since set aside the order confirming those demands and remanded the matter, the sanctioned refund already determined on merits must be paid to the assessee in cash.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 130/2013-C.E. dated 13/03/2013 passed by Commissioner of Central Excise, BANGALORE-I (Appeal).]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
M/s. ITI Ltd Bangalore Plant, Doorvaninagar, BANGALORE - 560016 KARNATAKA Appellant(s)
Versus
Commissioner of Central Excise, Customs and Service Tax BANGALORE-I POST BOX NO 5400, CR BUILDINGS, BANGALORE, - 560001 KARNATAKA
Respondent(s)
Appearance:
Mr. B.V.KUMAR, Advocate 103, 17 'C' MAIN ROAD, 5TH BLOCK, KORAMANGALA, BANGALORE-560 095 For the Appellant
Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent
Date of Hearing: 04/06/2015
Date of Decision: 04/06/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 21290 / 2015
Per : ARCHANA WADHWA
After hearing both the sides, it is seen that the appellants refund claim to the extent of Rs.1,47,24,880/- stands sanctioned by the impugned order but was appropriated towards the earlier demands confirmed against them. In such a scenario, we are of the view that provisions of Section 35F are not applicable and this stay application as accepted by both the sides is infructuous.
2. Inasmuch as a short issue is involved, we proceed to decide the appeal itself with the consent of both the sides. It is seen that after sanctioning refund claim, the same was adjusted against the demand confirmed vide Order-in-Original No.01/2006 dated 27.2.2006. The said order of the Commissioner was impugned by the appellant before the Tribunal and even during the relevant period, when the refund was sanctioned, appeal was pending before the Tribunal. It is the contention of the learned advocate appearing for the appellant that such adjustment of the refund against pending demands have been held to be bad by various decisions of the Tribunal.
3. In any case, we find that the said Final Order of the Commissioner being Order-in-Original No.1/2006 dated 27.2.2006 already stands set aside by the Tribunal vide its Final Order No.22046/2014 dated 13.11.2014 and the matter stands remanded to the original adjudicating authority. If that be so, the quantum of refund involved in the present appeal and already sanctioned on merits is required to be given to the appellant in cash. We order accordingly and direct the lower authorities to do the needful within a period of 2 months from today. Stay petition as also appeal gets disposed for in above manner.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 3
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