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2016 (12) TMI 1041 - AT - Central ExciseUnjust enrichment - Whether the duty paid in excess or short paid can be adjusted suo motto by the appellant? - Held that: - Larger Bench in the case of Excel Rubber Ltd. Vs. Commr. of Central Excise, Hyderabad [2011 (3) TMI 527 - CESTAT, NEW DELHI (LB)] has held that even in case of provisional assessment leading to refund, an assessee will be required to file refund claim to justify that unjust enrichment is not attracted, assessee has to approach Central Excise authorities with refund application and proof in support of the claim that excess amount has not been recovered from the customers - thus, appellant was not entitled to suo motto adjust the excess/short payment of duties. Time bar - Held that: - the Ld. Advocate appearing on behalf of the appellant argued that in a letter dated 8/8/2007 written to the department appellant has clearly brought to the notice of the Department that adjustment of duty as a result of escalation/de escalation of price of their final products was intimated. On careful perusal of this letter it is observed that only the excess duty required to be paid by the appellant as a result of escalation was intimated to the department after payment. There is no mention in this letter as to how much excess duty was paid and how much less duty paid by the appellant was adjusted. The said intimation will not help the case of the appellant and it is held that extended period and penalty are invokable in these proceeding against appellant. Appeal dismissed - decided against assessee.
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