2012 (11) TMI 381

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....t for appellant Ms. D.M. Durando, Dy. Comm. (AR), for respondent Per: P. R. Chandrasekharan   1. These two appeals filed by the appellants, arise out of a common order-in-appeal No.YDB(20-21)M.V./2012 dated 14/03/2012 passed by the Commissioner of Central Excise (Appeals), Mumbai; hence, they are taken up together for consideration and disposal. 2. The appellant, M/s.Mars Internat....

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.... that appropriation under Section 11 is not permissible in law, in view of the decisions of the Hon ble High Court of Bombay in the case of Thermo Plastic Industries Vs. UOI, reported in 1991 (51) ELT 629 (Bom), Hon ble High Court of Allahabad in the case of Vespa Car Co. Ltd., Vs. CCE, 1992 (61) ELT 16 (All), Hon ble High Court of Rajasthan in the case of Shree Cement Ltd., Vs. UOI, 2001 (133) EL....

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....and, hence, the appellant is before me. 3. The Ld. Counsel for the appellant submits that this Tribunal vide order dated 18/01/2012 granted stay against the order-in-appeal dated 08/02/2011 referred to supra, considering the fact that the appellant had already paid the duty involved along with 25% of the penalty imposed. Therefore, appropriation of the amount by the lower authority tantamoun....

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.... and further held that once the adjudicating authority holds that the assessee is entitled to refund, in the absence of a specific provisions authorizing the revenue adjusting the said amount towards dues to them, it is improper to make adjustment. The Hon ble High Court of Bombay in the case of Thermo Plastic Industries cited supra held that initiation of coercive measures to recover dues when ap....