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2014 (9) TMI 771 - AT - Central ExciseFinalization of provisional assessment – Finalization of assessment done without adjustment of excess payments against short payments on the ground that the former needed to be claimed as refund – Commissioner held that Adjudicating Authority has erred in not adjusting the amount of excess paid duty against the amount of duty short paid during finalization of the provisional assessment - held that:- Commissioner (Appeals) has been passed in respect of Department's review appeal against order-in-original dated 11/03/05 and by this order, the Commissioner (Appeals) has held that the finalization of the assessment-should have been done invoice wise and no adjustment of excess duty paid during a month against short payment during the same month should have been allowed. Against the same order dated 11/03/05 of the Deputy Commissioner by which he had disallowed the adjustment of excess payment of duty of ₹ 3,54,467/- during certain period of provisional assessment against the short payment during, the period of ₹ 14,60,053/-, the assessee had filed an appeal before the Commissioner (Appeals) and in respect of that appeal, the Commissioner (Appeals) vide order-in-appeal dated 05/08/05 had reversed the part of the Deputy Commissioner's order refusing the adjustment of excess payment against the short payment and, as such, had allowed the adjustment of excess payment against the duty demand during finalizing the provisional assessment. Once the Commissioner (Appeals) passed this order in respect of appeal against the order-in-original dated 11/03/05 of the Deputy Commissioner, in accordance with the law laid down by the Apex Court in the case of Kunhayamed vs. State of Kerala (2000 (7) TMI 67 - SUPREME Court), the Deputy Commissioner's order dated 11/03/05 cease to exist and merges with the Commissioner (Appeals)'s order dt 5/8/05 and what remains is the Commissioner (Appeals)'s order dated 05/08/05. While finalizing a provisional assessment, the excess payment of duty can be adjusted against the short payment. This judgment is with regard to the provisions of Rule 7 of the Central Excise Rules, 2002. - Decided against Revenue.
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