M/S Reliance Stamping vs C.C.E. Delhi-Iv
- CitationExcise Appeal No. E/51123/2014-E[SM]
Ratio decidendi
The rule this decision rests on
Where the Central Excise Department has issued a show cause notice seeking recovery of a duty amount that has not been adjudicated, that amount cannot be treated as a confirmed liability of the assessee; and absent any adjudication or determination of such liability, the Central Excise Statute contains no active provision permitting an admitted refund to be adjusted against it, so the refund must be paid to the assessee.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 171/CE/APPL/DLH-IV/2013 dated 13.11.2013 passed by CCE (Appeals) Faridabad]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, 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 Reliance Stamping ...Appellant(s)
Vs.
C.C.E. Delhi-IV Respondent(s)
Appearance:
Mr. N. L Jangir (Advocate) for the Appellant
Mr. G R Singh DR for the Respondent
CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Date of Hearing/ Decision. 03.09.2015
Final Order No. 54104/2015_
Per S K Mohanty:
The brief fats of the case are that the appellant had filed a refund claim on 07.05.2012, claiming refund of Rs. 2,45,919/-. The refund application was adjudicated vide order dated 08.10.2012, wherein refund claim of Rs. 84,031/- was sanctioned in favour of the appellant. However, the said refundable amount was adjusted against the outstanding liability of Rs. 85,847/- which was recoverable from the appellant. Feeling aggrieved with such adjustments, the appellant has preferred appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order dated 13.11.2013 has upheld the order passed by the Adjudicating Authority. Hence the present appeal is before this Tribunal.
2. Heard the Ld. Counsel for both the sides and examined the case records.
3. There is no doubt that the appellant is entitled for refund of Rs. 84,013/- as held in the adjudication order. However, adjustment of the said refund amount towards the outstanding liability of Rs, 85,846/- is not proper and for adjusting such amount there is no active provisions contained in the Central Excise Statute. I find from the available records that the SCN dated 28.08.2012 issued by the Central Excise Department, seeking recovery of Rs. 85,846/- has so far not been adjudicated. In absence of any adjudication or determination of the liability, it cannot be said that there is confirmed liability against the appellant. In view of above, I am of the considered opinion that the amount of Rs. 84,013/- is refundable to the appellant.
4. Therefore, the impugned order is set aside and the appeal is allowed in favor of the appellant with consequential benefit of refund.
(Dictated and pronounced in open court)
(S. K. Mohanty)
Member(Judicial)
Neha
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E/51123/2014-Ex[SM]
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