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2010 (7) TMI 961 - AT - Central ExciseQuantities found in excess/short - Assessee is a refinery engaged in production of petroleum products by distillation from crude oil. Their finished goods are sold to Oil Marketing Companies (OMCs) on payment of duty - demand of duty on quantities found to have been cleared to OMCs by the Refinery in excess of quantity on which the Refinery paid duty at the time of clearance - demands being set off suo motu against refunds claimed to be due, by the assessee - Held that: - once excisable goods have been cleared on payment of duty, the law does not provide for tracking the goods to the buyer’s premises to determine the actual duty liability with reference to receipt - post- removal adjustment in duty liability is not permissible. As regards the duty demand on excess removals, we find that the demand of duty and interest is in accordance with law - Right course for the assessee would have been to follow provisional assessment. Notwithstanding the discrepancy between quantities ascertained by the assessee and the buyer, then the transaction value would have been that as agreed mutually in a contract and paid by the OMC. Denial of refund of duty paid on quantities short received by OMCs compared to the quantity on which the Refinery had paid duty - Held that: - The issue has arisen due to a clerical mistake on the part of M/s. IOC. There is an automatic systems of debit of duty by the respondents in the account of IOC. Even if mistake occurs, duty in the account of IOC at the end of the respondents automatically gets debited. The only way, in such a register, to correct the mistake is to provide credit to IOC. In the present case it is seen that the invoice was raised on 17-4-2002 and the rectification was done on 5-7-2002 i.e. within a fort-night. If the respondent is not given the refund, it will be traverse of justice, as the respondents will never be able to set the refund of duty paid erroneously or due to a clerical error. Appeal rejected - decided against assessee.
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