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2011 (3) TMI 527 - AT - Central ExciseProvisional assessment - Principle of unjust enrichment - adjustment of excess payment towards the short payment of duty ascertained at the time of finalization of provisional assessment - levy of penalty - Held that:- It is true that sub-rule (5) of Rule 9B uses the expression 'adjustment'. However, such expression was used with reference to adjustment of duty provisionally assessed against the duty finally assessed. It is not in relation to actual payment of duty by an assessee or in relation to any right of the assessee to get the excess payment being adjusted towards short payment. Sub-rule (5) of Rule 9B is very clear in that regard. - once the authority on finalization of assessment finds any amount of money having been paid in excess of the duty liability ascertained in the final assessment, the excess amount so ascertained would become refundable to the assessee. Such excess amount can certainly be adjusted towards any other duty liability of such assessee underline Excise Act, 1944 and Rules made thereunder, however, such adjustments are subject to the applicability of the principle of unjust enrichment.
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