2015 (6) TMI 1159 - AT - Central Excise

Appellate Tribunal upholds refund appropriation, rejects Section 35F, remands matter, directs refund payment.

M/s. ITI Ltd. Versus Commissioner of Central Excise, Customs and Service Tax BANGALORE-I

The Appellate Tribunal CESTAT BANGALORE confirmed the appropriation of the appellant's refund towards earlier demands, ruling that Section 35F did not ... Adjustment of sanctioned refund against the demand confirmed - case of appellant is that such adjustment of the refund against pending demands have been held to be bad by various decisions of the Tribunal - Held 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 - 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. The quantum of refund involved in the present appeal and already sanctioned on merits is required to be given to the appellant in cash - appeal allowed by way of remand. Issues:1. Appropriation of refund towards earlier demands confirmed against the appellant.2. Adjustment of refund against pending demands.3. Set aside Final Order of the Commissioner and remand to original adjudicating authority.Issue 1: Appropriation of refund towards earlier demands confirmed against the appellantThe judgment noted that the appellant's refund claim of Rs. 1,47,24,880/- was sanctioned but was appropriated towards earlier demands confirmed against them. The Tribunal observed that in this situation, the provisions of Section 35F were deemed not applicable, rendering the stay application infructuous as accepted by both parties. Consequently, the Tribunal decided that the stay application was unnecessary given the circumstances.Issue 2: Adjustment of refund against pending demandsThe Tribunal proceeded to decide the appeal itself with the consent of both parties due to the involvement of a short issue. It was highlighted that the refund, after being sanctioned, was adjusted against a demand confirmed in a previous order. The appellant had appealed the Commissioner's order before the Tribunal, and during the relevant period when the refund was sanctioned, the appeal was still pending. The appellant's advocate contended that such adjustments of refunds against pending demands had been deemed improper by various Tribunal decisions.Issue 3: Set aside Final Order of the Commissioner and remand to original adjudicating authorityThe Tribunal observed that the Final Order of the Commissioner, specifically Order-in-Original No.1/2006 dated 27.2.2006, had already been set aside by the Tribunal in a previous Final Order No.22046/2014 dated 13.11.2014. Consequently, the matter was remanded to the original adjudicating authority. Given this situation, the Tribunal directed that the quantum of refund involved in the present appeal, already sanctioned on merits, should be paid to the appellant in cash. The lower authorities were instructed to complete the necessary actions within a period of 2 months from the date of the judgment. As a result, the stay petition and appeal were disposed of in the above manner.This comprehensive analysis of the judgment from the Appellate Tribunal CESTAT BANGALORE covers the issues of appropriation of refund towards earlier demands, adjustment of refund against pending demands, and the set aside Final Order of the Commissioner with a remand to the original adjudicating authority.