2017 (3) TMI 931

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....perative society and have their chocolate factory at Puttur manufacturing sugar confectionary. The clearance of the milky bar eclairs was under dispute as to whether they should be assessed under Section 4 of the Central Excise Act 1944 as claimed by the appellant or section 4A as claimed by the department for the period 20.02.2003 to 24.07.2003, where they had cleared the goods under Section 4 and show-cause notice dated 23.01.2004 was issued to them demanding differential central excise duty of Rs. 22,63,506/-. This matter attained finality based on the Supreme Court Orders upholding the order No 136/2008 dated 26.02.2008 passed by the Hon'ble CESTAT in their favour. For this period the department had appropriated their B.G. No. 205/2002 ....

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....o them and appropriated a sum of Rs. 1,66, 580/- and interest of Rs. 1,41,409/- towards dues owed by them. Based on the CESTAT order the appellant filed refund claim of Rs. 23,75,620/- on 21/2/2012 with the lower authority and the lower authority vide their order sanctioned the sum and appropriated a sum of Rs. 23,50,121/- towards dues owed by them to the department and paid them the balance of Rs. 25,499/- only. Aggrieved by the said order appellant filed appeal before the Commissioner (Appeals) on the ground that the lower authority has wrongly appropriated the dues despite being informed that appeal and the stay application was pending against the appellate order before the Hon'ble Tribunal. The learned Commissioner (Appeals) vide the im....

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...., 1944 does not contemplate adjustment of monies due to the assessee towards the amount due to the Revenue - When once the adjudicating authority has held that the assessee is entitled to refund of the amounts which he had paid to the Department, in absence of a specific provision authorizing the Revenue adjusting the said amount towards due to them, it is improper for them to make such adjustment - No question of invoking equitable consideration - After making refund of the amount which is due it is open to the Revenue to proceed against the assessee to recover the amounts under the provisions of the Act - Tribunal s order upheld." She also relied upon the decision of the Rajasthan High Court in the case of Bhatia & Company Vs UOI [2013....