TMI Blog1989 (8) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... iefly are that the appellant manufactures various excisable goods including soap. By Notification No. 25/75, dated 1-3-1975 (as amended from time to time), a concessional rate of duty has been prescribed for soap manufactured with indigenous Rice Bran Oil or a mixture of such oil with other oils, and concession varied, depending upon percentage of Rice Bran Oil used therein. The amount of exemption was at the option of the manufacturer to be calculated either on the basis of individual charge or on monthly basis. The appellant was availing of the concession on the basis of individual charge. 3. The appellant received a show cause notice dated 20-1-1983 wherein it was alleged that the appellant has mis-declared in the R.G. 1 Register and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order No. 169/Cal./84 dated 18-1-1984 set aside the order of the Deputy Collector and remanded the matter back to him for fresh decision according to law after examining whether the request of the appellant that some rebate, available to them, had not been availed of by them and whether the same could be adjusted against the demand raised. 6. On remand, the matter came before the Additional Collector of Central Excise, Calcutta-1. After hearing the appellant, he refused to accept the contention of the company about adjustment of any amount which, according to the appellants, was adjustable as stated above, on the ground that the appellant company had not informed the Jurisdictional officer about non-a ailment of rebate at any time and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was paid more than due because it was calculated on the basis of earlier declaration made. Conversely, even if the percentage of R.B. Oil used was less, the duty paid might have been less because of the same reason. Now this aspect is not disputed by the lower authorities. So, both these possibilitie are quite probable and possible. Shri Mehta referred us to provisions of Rule 173-(1) Sub-rule (2) which is as under: The duty determined and paid by assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, it could not be adjusted against the demand but that they should file a separate claim. As rightly contended by Shri Mehta, this interpretation is not correct. In the impugned order also, the Additional Collector had, more or less, taken this line of argument, but that is not proper. Otherwise, the above excerpted provision of Rule 173-1 (2) would be negatived. So, the impugned order is bad in law. The appellant is entitled to ask for set off and the department has to calculate the excess payment also as well as under-payment, and after adjusting one against another, raise a demand for remaining amount of duty, if any. 11. Sh. Mehta also drew our attention to the fact that assessment for the period under consideration was provisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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