2014 (1) TMI 1472 - HC - Central Excise

Court directs respondent to adjust rebate amount to duty payable by petitioner per 2006 order.

The Court directed the respondent to adjust the rebate amount only to the extent of the duty payable by the petitioner as per the 2006 order. The rebate ... Appropriation of the rebate claims with duty demand - Held that:- revenue is not seeking to initiate recovery proceeding on the expiry of a stay. In this case, the revenue is seeking to exercise its power under Section 11 of the Act by adjusting the amount which is due (rebate claim) to the petitioner from the revenue against the amount payable by the petitioner to revenue as a consequence of the order dated 31 July 2006. It is to be noted that the so called stay which was granted to the petitioner on 15 December 2006 by the Tribunal was not in exercise of its inherent powers but was in exercise of powers under Section 35F of the Act which only dispenses with the requirement of pre-deposit of duty and penalty for entertaining the appeal on merits. The dispensing with the requirement of predeposit of duty and penalty under the proviso to Section 35F of the Act for the purposes of hearing the appeal could at the highest be said to restrain the revenue from taking any coercive action for recovery but would not estop the revenue from adjusting amounts which become subsequently due to the petitioner towards the amount payable by the petitioner to the department. Besides, introduction of the third proviso to sub-section (2A) of Section 35C of the Act introduced in 2013 would appear to dilute the applicability of the decision relied upon by the petitioner. Revenue allowed to appropriate the duty amount with rebate but not allowed to adjust penalty amount, the balance would be released to the assessee. - Decided partly in favor of assessee. Issues:Challenge to orders for appropriation of rebate claims against confirmed duty demand recoverable and notice seeking recovery of balance penalty amount.Analysis:The petitioner challenged three orders and a notice issued by the Assistant Commissioner of Central Excise and Superintendent of Central Excise, respectively. The dispute arose from an investigation alleging evasion of central excise duty, leading to a confirmed duty demand of Rs.53,53,452/- along with penalties imposed on the petitioner and its directors. The Tribunal initially dispensed with the requirement of predeposit for hearing appeals. The Tribunal granted extensions of stay orders, with the last extension until 24 February 2013. The petitioner filed for further extension in November 2013. Meanwhile, rebate claims were made by the petitioner, which were sanctioned but directed to be appropriated against the confirmed dues. The subsequent notice sought recovery of the balance amount of duty and penalty. The petitioner contended that the delay in appeal disposal was not due to their actions, citing precedents to argue for the extension of stay. However, the respondent relied on a statutory amendment and case law to justify the appropriation of rebate against dues.The Court considered the arguments and relevant legal provisions. It distinguished previous cases dealing with stay extensions and recovery proceedings. The Court noted that the revenue sought to adjust the rebate against the petitioner's dues, as allowed under Section 11 of the Act. The stay granted by the Tribunal was specific to predeposit requirements and did not prevent such adjustments. The introduction of a new proviso in 2013 altered the situation, potentially allowing for adjustments despite pending appeals. The Court referenced a Division Bench decision supporting the Tribunal's power to extend stays even after the introduction of such provisos. Consequently, the Court issued directions to address the matter.In its judgment, the Court directed the respondent to adjust the rebate amount only to the extent of the duty payable by the petitioner as per the 2006 order. The rebate amount was not to be used to satisfy penalties pending in appeals before the Tribunal. Once the duty amount was adjusted, the balance was to be released to the petitioner. The Court quashed the notice seeking recovery of the balance penalty amount. Importantly, the judgment clarified that its decision did not affect the parties' rights and contentions in the pending appeal before the Tribunal. The writ petition was disposed of with no costs awarded.