The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that the appropriation of any amount must be made as demands of legitimate duty or dues by the department. The respondent in the present matter is Shree Cement Ltd.
The department in the instant case has come up in appeal against non-appropriation of amount paid for the period prior to 12.01.2012 by the adjudicating authority. The adjudicating authority in this matter while confirming the demand within extended period of limitation of 5 years did not demand duty nor appropriate the above stated amount being beyond the period of 5 years of limitation.
The department considering that the amount was paid voluntarily and seeking to rely upon the decision of Indian Cement Ltd, has come out with a plea that even if an amount has not been demanded but was voluntarily paid, same should have been appropriated by the adjudicating authority.
As against the stand taken by the department, the advocate appearing for the respondent has sought to rely on the decisions of Crown Lifters and Pilmen Agents (P) Ltd, to emphasize that only that amount can be appropriated which is actually demanded and confirmed by the authority as duty.
The Coram consisting of Raju, Technical Member and Somesh Arora, Judicial Member observed that “We find that the case law relied upon of Indian Cement Ltd. by the department is an older case pronounced in the year 1984 whereas the latest flow of decisions established after the unjust enrichment provisions were brought in, clearly indicate that what can be appropriated is what is demanded as dues of the department.”
“For the limited purpose of the appeal of the department, we hold that to appropriate an amount, the same must be demanded as legitimate duty or dues by the department, first” the Tribunal noted.
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