2016 (8) TMI 666

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....order which is reproduced below. 2. As per the OIA NO. 166-167/CE/BPL/2004 dated 23.03.2004, passed by Commissioner (Appeals) Central Excise , Bhopal, credit of Rs. 677868/- initially disallowed by the Adjudicating Authority, was allowed. The appellant had earlier debited Rs. 677868/- vide PLA E.NO. 10 dated 07.10.99 being pre-deposit in pursuance of inter-stay-order No. 913-915/CE/BPL/99 dated 23.09.99 passed by the Commissioner (Appeals) Bhopal. Since, the appellate order went in favour of the appellant, the appellant was entitled for refund of this amount and a refund claim was duly med within the time limit. However, it was on the record that arrears amounting to Rs. 178118/- and interest thereto of Rs. 112357/- and penalty of ....

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....standing to be recovered from the appellant.  Section 11 of the Central Excise Act, 1944 states as under :- "In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, the officer empowered by the (Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963(54 of 1963) to levy such duty or require the payment of such sums may deduct the amount so payable from any money. owing to the person from whom such sums may be recovered or due which may be in his hands or under his disposal or control, or recoverable or due which may be in his hands or under his disposal or control, or may recover the amount ....

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....justed from the refund, there was not only no stay against the recovery of the said dues nor was any stay application pending with regard thereto.  Indeed the appeal against the order in terms of which the said dues were recoverable had been dismissed by CESTAT.  In these circumstances, the lower authority is completely justified in holding that such adjustment was totally legal and proper in terms of Section 11 of Central Excise Act, 1944. 6.  In addition the Commissioner (Appeals) has clearly observed that the order in original dated 13.09.2004 against which the appeal was filed before Commissioner (Appeals) was communicated to the appellant on 13.09.2004 but the appellant filed the appeal under Section 35 before the Com....