Bayer Vapi Pvt Ltd Vs C.C.E. & S.T. (CESTAT Ahmedabad)
CESTAT find that the sanctioning authority appropriated the demand of Rs.4,50,572/-from the sanctioned rebate claim, the said appropriated amount is towards penalty and interest in a demand case whereas, the appellant had deposited the entire duty amount. When the appropriation was done against the demand order, the appeal was pending before the Tribunal. For filing appeal there is a requirement of mandatory pre-deposit of 7.5% or 10% as the case may be in terms of Section 35F of Central Excise Act, 1944.
From the above section 35F, the appellant was required to pay only 10% (7,5% at Commissioner Appellate stage & 2.5% at CESTAT appellate stage). When this appropriation was made on 12.09.14, the appellant not only paid this 7.5% or 10% as the case may be, but have paid the entire duty amount. The appropriation was made towards the penalty and interest only. Regarding recovery of dues when the appeal is pending, the Board has issued a Circular Circular No. 984/8/2014-CX., dated 16-9-2014.
From the above circular, it is clear that against the adjudged dues, the appellant, for filing an appeal, is required to pay only 7.5% or 10% as the case may be. On payment of such amount, entire remaining amount stand stayed if this be so, out of the remaining amount no recovery can be made. As stated above, the appellant not only paid 7.5%/10% but the entire duty therefore, in terms of Section 35F read with Board Circular Circular No. 984/8/2014-CX., dated 16-9-2014, the revenue should not have recovered the amount of penalty and interest by way of appropriation from the sanctioned rebate claim. The appellant’s demand case got settled under ‘SVLDRS-2019’, for this reason also, no amount shall be allowed to be appropriated.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
01. The issue involved in the present case is that whether the revenue is correct in appropriating the demand of Rs.4,50,572/- towards penalty and interest corresponding to a confirmed demand from the sanctioned rebate claim during the period the demand case was pending before the tribunal.
02. Shri S.Suriyanarayanan, learned counsel appearing on behalf of the appellant submits that in the demand case, the appellant had deposited the entire duty amount and only penalty and interest was left out however, the appellant had preferred an appeal before the CESTAT which was admitted and pending therefore, at that stage the demand could not have been appropriated from the sanctioned rebate claim. He submits that at the relevant time, the appellant was required to pay only 7.5% or 10% as the case may be for filing appeal and remaining amount stand stayed. In the present case, the appellant had paid the entire duty amount therefore, the remaining amount could not have been recovered from the sanctioned rebate claim. He placed reliance on the following judgments:-
