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2019 (6) TMI 1018 - AT - Central ExciseAdjustment of short paid duty against the refund claimed by the appellant for excess amount of duty paid - contention of the Revenue is that since the assessment was not provisional in accordance with Rule 7 of the Central Excise Rules, 2002, therefore, the appellant is precluded from adjusting the excess/shortage of duty against their liability - HELD THAT:- A number of disputes on setting off of excess duty paid against short payment has withstood the test of law. In terms of the decision in MY CAR PUNE PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (10) TMI 457 - CESTAT MUMBAI] such adjustments are possible but only upon sanction of the refund claims. The appellant herein has furnished the refund claims and we find that there has been no proper disposal of those claims. Such disposal would require an ascertainment of eligibility for refund at the threshold and, upon it being shown the incidence of duty has not been passed on, to be allowed as refund. The right to refund of eligibility amount is vested in the hands of the individual/entity who has borne the duties and it cannot be retained by the exchequer. In order to ensure that there is a proper compliance with the settled law on sanction, as well as adjustment, of refund, the impugned order is set aside and matter remanded back to the adjudicating authority to decide the claim afresh - appeal allowed by way of remand.
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