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2013 (12) TMI 278 - AT - Central ExciseProvisional assessment - Principle of unjust enrichment - Adjustment of the excess paid with the short-paid duty – Held that:- Excel Rubber Ltd. v. CCE, Hyderabad [2011 (3) TMI 527 - CESTAT, NEW DELHI (LB)] - even in respect of provisional assessments, no adjustments can be held to be permissible at the time of finalization of the assessment - the assessment were not provisional and as such the benefit of neutralization cannot be extended. Admissibility of the Notification No. 53/2001 – Held that:- The benefit of the notification in respect of the differential demand of duty could not have been availed by them at the time of original clearance of the goods - The appellant had availed the benefit, without any objection, at the time of the original clearance of the processed fabrics, relatable to the duty paid by them at that time - If the Revenue is subsequently making a demand of the differential duty, the same has to be subject to the benefit of the notification available. Extended period of Limitation – Held that:- An assessee is required to pay duty on the correct assessable value at the time of clearance of the goods - the variation in job charges amount was known to the assessee prior to the clearance of the processed fabrics - the less payment of duty was not intentional and was on account of error on the part of the assessee - Had it been intentional, the appellant would not have paid higher duty on the other clearances - it is clear that there was no ulterior motive on the part of the assessee to evade payment of duty - the extended period of limitation would not be available to the Revenue – order set aside and the matter remanded back to the adjudicatory authority for recalculation of duty demand within the period of limitation and by extending the benefit of Notification No. 53/2001- there was no mala fide intention on the part of the appellant, imposition of any penalty on them is not justified – Decided in favour of Assesse.
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