Order Date- 1 June 2022

Facts:

• The order-in-original dated 05/08/2020 relating to the period December 2012 to June 2013, total demand of Rs. 4,41,29,475/- was confirmed and which was ordered to be appropriated from the amount already deposited/reversed Rs. 5,52,79,359/- Further, order to recover interest under Rule 14 of CCR, and penalty of Rs. 15 lakh was imposed under Rule 15. Against this order-in-original, the appellant-assessee preferred appeal before this Tribunal which is registered as appeal no. E/50305/2021 wherein the appellant have disputed the disallowance of Cenvat credit Rs. 1,64,56,772/- along with interest and penalty, and also the imposition of penalty of Rs. 15 lakhs. So far the other amount of Rs. 2,76,72,703/- is concerned, the appellant had not disputed that amount and which has already been paid/debited and was appropriated, and on this amount there is no dispute of any interest.
• The appellant M/S Total  Energies Marketing India Pvt Ltd filed refund claim for the balance amount of Rs. 1,11,49,884/- or (5,52,79,359-4,41,29,475). This refund claim was adjudicated vide Order-in-Original dated 31/12/2020 and adjusted an amount of Rs. 27,02,518/- towards interest on the Cenvat credit wrongly availed for the period September 2012 to November 2012 and also recovered the amount of penalty of Rs. 15 lakhs totaling Rs. 42,02,518/-, and granted the refund for the balance amount of Rs. 69,47,366/-.
• Being aggrieved the appellant preferred appeal before the Commissioner (Appeals) who was pleased to reject the appeal upholding the adjustment made by the court below.
• Being aggrieved the appellant is before this Tribunal. Learned Counsel inter alia urges that admittedly, the amount adjusted from the refund towards penalty and interest is sub judice before this Tribunal in the aforementioned Excise appeal, which was filed on 07/12/2020. Learned Counsel also points out that this fact of filing appeal along with the necessary pre-deposit required under Section 35F had been brought to the knowledge of the Adjudicating Authority in response to show cause notice which was issued. Accordingly, the learned Counsel states that there is miscarriage of justice by adjusting sub judice amount of interest and penalty. Accordingly, he prays for allowing the appeal with consequential benefit.

Issue:

• Whether from the refundable amount, adjustment have been rightly made for the amount of interest and penalty, which is sub judice before the higher court of appeal? 

Order:

• The Tribunal held that Section 11 of the Central Excise Act grants power to the Central Excise officers, being in the nature of special power of recovery, which in the nature of ‘garnishee proceedings’. The Adjudicating Authority is empowered to not only adjust arrears of tax recoverable from the assessee from any money/refund which is in the hands of the authority payable to the assessee, further empowers to issue certificate for adjustment to another Central Excise Officer who may have any money payable to the assessee, and also empowers to issue certificate to the District Collector for recovery of tax dues as arrears of land revenue.
• The Tribunal further hold that such power of adjustment cannot be exercised for demand of tax/interest/penalty which is sub judice. Admittedly, in the facts of the present case, the amount of interest and penalty are sub judice before this Tribunal and this fact was admittedly in the knowledge of the court below. The adjustment made from the amount refundable to the appellant is bad and the same is set aside. The Adjudicating Authority directed to grant the refund of balance amount of Rs. 42,02,518/- in cash along with interest under Section 35FF of Central Excise Act. 
• Therefore, the appeal is allowed and decided in favor of appellant.