At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: ASHOK JINDAL
For Petitioner: Stebin Mathew, Advocate And For Respondents: Ajay Kumar, Additional Commissioner (AR)
1. The appellant is in appeal against the impugned order wherein Learned Commissioner (Appeals) has adjusted the amount of rebate claim filed by the appellant against the dues pending against them. The brief facts of the case are that the appellant filed 103 rebate claims under Rule 18 of the Central Excise Rules, 2002. The rebate claims were sanctioned but same were adjusted against the outstanding payment as per records vide Order-in-Original Nos. 05/VKS/TH-II/08, dated 2-6-2008, 07/BN/Th-II/10, dated 31-5-2010 and 27/10-11, dated 20-1-2011. The appellant is aggrieved from the said order and filed this appeal before this Tribunal.
2. Learned Counsel for the appellant submits that as regards order dated 2-6-2008, the learned Commissioner (Appeals) himself has granted the waiver of pre-deposit vide his order dated 26-8-2008 and the same was finally decided in favour of the assessee by the authority below. But, without stay order obtained from the higher forum, the demand has been adjusted by the Commissioner (Appeals). Further, with regard to order dated 31-5-2010 and 28-1-2011, the matter has reached upto this Tribunal and in terms of amended provisions of Section 35F of the Act, the appellant has made a pre-deposit of 10% of the duty in both the case and as per the said provisions, there shall be waiver of pre-deposit of remaining amount till disposal of the appeals, therefore, impugned demands against the order dated 2-6-2008, 31-5-2010 and 20-1-2011 cannot be adjusted till finalization of these cases.
3. On the other hand, learned AR supports the impugned order and submits that there is clear cut finding by the adjudicating authority that no stay has been obtained by the appellant from the higher forum, therefore, he has rightly adjusted the amount.
4. Heard the parties.
5. On careful consideration of the submissions made by both sides, I find that the demand pertaining to order dated 2-6-2008 has been stayed by the learned Commissioner (Appeals) vide his order dated 26-8-2008 wherein waiver of pre-deposit has been granted. In that circumstances, the amount cannot be adjusted by the adjudicating authority. Moreover vide final order No. CD/01/Th-II/2015, dated 24-6-2015, the learned Commissioner (Appeals) has set aside the adjudication order dated 2-6-2008. Therefore, the demand confirmed against the order dated 2-6-2008 is not sustainable and hence the same cannot be adjusted, consequently is to be refunded to the appellant.
6. With regard to OIO dated 31-5-2010 and 20-1-2011, as per amended provision of Section 35F of the Central Excise Act, if the assessee made a mandatory pre-deposit of 10% of the amount in dispute, the waiver of pre-deposit of remaining amount is granted till the disposal of the appeals. Admittedly, the appellant has made the pre-deposit and the appeals are pending disposal before this Tribunal. In these circumstances, the amount confirmed by the order dated 31-5-2010 and 20-1-2011 are in dispute, therefore, during the pendency of the appeal filed by the appellant, the same cannot be adjusted against the rebat
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e claim. 7. In these circumstances, I hold that the impugned order deserve no merit, therefore, the same is set aside. Further, I hold that the dues against the order dated 31-5-2010 and 20-1-2011 cannot be adjusted against the rebate claim filed by the appellant. In these terms, the appeals are allowed with consequential relief, if any.