Page 266 - ELT_1st September 2020_Vol 373_Part 5

704 EXCISE LAW TIMES [ Vol. 373

23-2-2001 and SCN V(3602)15/offence/50/98/10736-44, dated 3-10-
2000; he failed to produce letter by which departmental claims were
lodged on the ground that being old the said record is not traceable;
he could not give any plausible reason to why claim pertaining to OIO
No. 5/2001, dated 23-2-2001, in SCN dated 3-10-2000, in which search
was conducted on 8-11-1997 was not lodged; he was unable to specify
reasons, why an appeal was not filed against the scheme; he could not
give any plausible reason why the order has not been implemented in
terms of the observation of the Hon’ble BIFR in summary record of
procedure of the review hearing held on 24-3-2003 and he admitted
that there is nothing on record that a contrary view has been taken by
any authority to this advice in respect of legal advice, given by Sh.
Kamalakar Sharma, ASG of India, vide his letter dated 15-1-2007.
20. In view of the above, I find that no recovery of dues/arrears adjudged
under OIO No. 141/2001, Dated 18-10-2001 and 5/2001, dated 23-2-2001
could be effected from the appellants as the new management (i.e. appel-
lant) has been accorded immunity from any liability, which was not taken
on record by the old management or not covered in the BIFR package and
therefore, liability on account of said cases of dues/arrears could not be re-
covered from the appellants, since, neither, of the said cases was covered
under sanctioned scheme. Thus the adjudicating authority has wrongly ad-
justed the amount of Rs. 1,23,16,228/- from the sanctioned refund claim vi-
de the impugned order.”
7. It is against this order dated 27 November, 2018 of the Commissioner
(Appeals) that this Appeal has been filed before the Tribunal by the Department.
8. Learned Authorized Representative of the Department has submit-
ted that the Commissioner (Appeals) committed an error in ordering that the
confirmed demand shall not be adjusted. It is his submission that the Assistant
Commissioner correctly directed for adjustment of the amount in terms of Sec-
tion 11(1) of the Excise Act.
9. It is not possible to accept this submission of the Learned Authorized
Representative of the Department. As noticed by the Commissioner (Appeals),
the dues pertaining to the orders Dated 18 October 2001 and 23 February 2001
confirming the demands, were not disclosed by the Department or the earlier
management to the BIFR and the same were not considered in the scheme sanc-
tioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the
management from recovery of dues which were not disclosed by the old man-
agement or not provided for in the package approved by the BIFR. It is not the
case of the Department that the dues pertaining to the aforesaid two orders con-
firming the demands had been disclosed by the Department or the earlier man-
agement to the BIFR. The proceedings before the BIFR had not been assailed be-
fore any appellate forum.
10. There is, therefore, no error in the order dated 27 November, 2018
passed by the Commissioner (Appeals).
11. The Appeal is, therefore, liable to be dismissed and is, accordingly,
dismissed.
(Pronounced in the open Court)
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