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2013 (4) TMI 25 - AT - Central ExciseDemand of differential amounts of cess , interest on cess and penalties - u/s 15 of the Oil Industry (Development) Act, 1974, the relevant provisions of the Central Excise Rules and under Rule 26 Central Excise Rules by the Department on crude oil cleared by the respondent. Department provides the Tribunal’s decision in the case of ONGC Ltd. v. CCE, Mumbai [2000 (12) TMI 148 - CEGAT, COURT NO. III, NEW DELHI]. The demands are contested by the respondent and also respondent asked for the refund of differential cess in respect of such shortages and the differential amounts of cess admissible and also pointed out that a plea for set-off the excess quantity of crude oil against shortage as refund should be adjusted against the differential amounts of cess demanded by department in the event of the quantity of crude oil actually received by the refinery being adopted as the basis for demands of cess under Section 15 of the Oil Industry (Development) Act, 1974. In this connection, the respondent referred the decisions of this Bench in their own cases viz. Final Order No. 1472/2006 dated 12-9-2006 (Cairn Energy India Pvt. Ltd. v. CCE & C, Visakhapatnam-II) reported in [2006 (9) TMI 41 - CESTAT,BANGALORE (Tri.-Bang.)]. Held that:- The excess quantities were considered for recovery of differential cess from the respondent and the shortages were ignored. If the assessee was liable to pay differential cess on the excess quantities of crude oil in terms of Section 15(2) of the Oil Industry (Development) Act, 1974, they could claim refund of differential cess in respect of the shortages. Therefore, the assesses claim for adjustment was liable to be considered by the proper officer of Central Excise at the time of finalization of provisional. There is also two more citations which are considered by department before taking the decisions [2007 (3) TMI 538 - CESTAT, KOLKATA,] & [2010 (8) TMI 226 - CESTAT, AHMEDABAD]. Any such adjustment between demand and refund of cess is not hit by the bar of unjust enrichment as mentioned in the decision of the Larger Bench of Tribunal Excel Rubber Ltd. v. CCE, Hyderabad [2011(3)TMI 527]. - Decided in favor of assessee.
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