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2023 (5) TMI 91 - AT - Central ExciseSuo moto adjustment of the duty paid in excess against the short payment of duty - provisional assessment under rule 7 of Central Excise Rules, 2002 - HELD THAT:- The Tribunal in the aforesaid judgments have consistently taken the stand in terms of the decision in COLLECTOR OF CENTRAL EXCISE, HYDERABAD VERSUS DIVYA ENTERPRISES LTD. [2003 (3) TMI 108 - SC ORDER] whereby the Apex Court re-cognising the concept of adjustment of duties has categorically allowed for such adjustment of duties with respect to less and excess duty paid and on that basis have allowed the appeals filed by the assessee - Reliance can be placed in the case of TILRODE CHEM PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2010 (6) TMI 544 - CESTAT, BANGALORE] and TOYOTA KIRLOSKAR AUTO PARTS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2011 (10) TMI 201 - KARNATAKA HIGH COURT]. It has been informed that the department has already challenged the judgements of the MP High Court in THE PRINCIPAL COMMISSIONER CGST AND CENTRAL EXCISE HEADQUARTERS BHOPAL VERSUS M/S GODREJ CONSUMER PRODUCTS LTD. [2019 (5) TMI 222 - MADHYA PRADESH HIGH COURT] before the Hon'ble Supreme Court in SLP (C) No. 30394/ 2019. However, it is found that there is no stay by the Hon'ble Supreme Court of the judgements under challenge and therefore as on today the present appeal has to be decided in terms of the earlier orders of the Tribunal and as affirmed by the MP High Court on the principle that adjustment of duty is permitted under Law and the benefit of the same ought to have been allowed to the assessee. Since the issue stands decided on merits in favour of the assessee the question of limitation and the imposition of penalty does not survive. In so far as the interest is concerned the same is liable to be paid by the appellant on the short duty paid which is to be determined after adjusting the excess duty paid and for that purpose matter remanded back to the original authority for adjustment of duty and also for determination of interest to be payable by the appellant. Appeal is allowed by way of remand.
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