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2023 (4) TMI 1068 - AT - Central ExciseAdjustment of Excess Excise duty paid - whether adjustment of duty excess paid during the period of provisional assessment is permitted at the time of finalisation of assessment in terms of rule 7 of the Central Excise Rules when the appellants had neither take the refund of said excess nor had ever availed Cenvat Credit of duty liability discharged? HELD THAT:- The Larger Bench of this Tribunal in the case of HINDUSTAN ZINC LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2015 (11) TMI 953 - CESTAT NEW DELHI (LB)] has decided this issue - It was held that If on finalisation of assessment, assessee required to pay shortfall duty during a particular period and denied excess payment made during another period of same financial year, entire purpose of keeping assessment provisional would become a futile exercise. In that case, it becomes a case of short paid/assessed duty for that period and ending with recovery of same. Further, adjustment of excess paid duty against short payment not to be denied on taking of Cenvat credit by sister unit inasmuch as it is assessee’s total duty liability after adjustment of short paid duty with excess paid duty which would be available as credit to other unit. The Tribunal, Mumbai Bench in the case of M/S MERCEDES-BENZ INDIA PVT. LTD. VERSUS CCE, PUNE-II [2016 (10) TMI 79 - CESTAT MUMBAI] also held that Adjustment of excess duty paid is allowable at the time of finalization of provisional assessment even when goods supplied to sister unit, who availed Cenvat Credit. The Tribunal, Mumbai Bench in another case of CENTURY RAYON VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2014 (12) TMI 157 - CESTAT MUMBAI] has held Adjustment of excess duty paid against short duty paid is allowable at the time of finalization of provisional assessment if the assessee is able to establish that such excess payment has not been passed on but borne by the assessee. In the present case, Unit II is not even the sister concern. Appellant admittedly has not taken Cenvat Credit. These admissions when are read with above discussed settled legal position, it stands clear that the adjustment of excess duty paid is liable at the time of finalisation of the provisional assessment. No Cenvat Credit ever been taken, admittedly, by the appellant. The question of any unjust enrichment of the appellant does not at all arise. In view of these observations, it is held that the Adjudicating Authorities below have wrongly denied the adjustment of excess duty of the amount of Rs. 2,17,328/- paid by the appellant to the amount of duty confirmed. Appeal allowed.
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