HINDUSTAN ZINC LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE instant appeal was filed by the appellant against rejection of refund of Rs. 1,30,807/ -.

(2.) THE relevant facts of the case, in brief are that, by an order -in -original dated 1.8.97, the demand of duty of Rs. 9.95,553/ - was confirmed against the appellant. By stay order dated 30.4.98, the Commissioner (Appeals), Jaipur directed the appellant to deposit a sum of Rs. Seven lakhs, which was deposited by the appellant by TR 6 challan dated 10.7.98. The Commissioner (Appeals) by order -in -appeal dated 3.11.03 modified the order -in -original and confirmed the demand of Rs. 5,69,193/ -. The appellant filed the refund claim for the amount of Rs. 1,30,807/ - as amount of pre -deposit. The adjudicating authority allowed the refund claim but he appropriated the said amount against another demand of duty arising out of order -in -appeal dated 25.11.03, which was pending before the Tribunal. In the impugned order, the Commissioner (Appeals) rejected the appeal of the appellant.

(3.) THE learned advocate on behalf of the appellant submits that the adjustment of refund of pre -deposit amount against another demand is not sustainable in law. He submits that there is no dispute that this amount was deposited by the appellant as pre -deposit, and, therefore, the adjudicating authority cannot adjust the amount against another penalty which was pending before the Tribunal and subsequently the Tribunal issued the stay order in favour of the assessee. He relied upon the following decisions: