TMI Blog2008 (4) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for waiver and stay has been filed which has come up for hearing. 2. Brief facts of the case so far as relevant for disposal of the stay matter are these; On 4-3-2003, on the request of appellant, order was issued for provisional assessment for the period 1-4-2003 to 31-3-2004. On 11-3-2005 the assessment was finalised. The appellant was found to have short-paid excise duty to the extent of Rs. 14,60,053/-. Appellant was also found to have excess paid excise duty to the extent of Rs. 3,54,467/-. After adjudicating the sum of Rs. 11,05,628/- already debited by the appellant vide RG 23A Part II entry dated 1-12-2004, an order was passed for recovery of Rs. 3,54,425/-. The Deputy Commissioner, further, observed that the assessee may f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,26,782/- is liable to be recovered with interest under different provisions of Central Excise Act and Rules as mentioned at the outset of this order. 5. Two issues are involved in this appeal : One, whether assessment should have been made invoice-wise separately or for the entire period i.e. April, 2003 to April, 2004. Second, whether the outstanding dues in respect of short-paid duty can be adjusted against excess paid duty amount. For the purpose of stay, counsel of the appellant focused his argument on the second issue. 6. Rule 7 of the Central Excise Rules, 2002 provides that where the assessee is unable to determine the value of the excisable goods or the rate of duty applicable thereto, he may request the Assistant/Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition, I am not able to appreciate as to how without determining whether the incidence of duty has been passed on or not, any order can be passed for adjustment of the short-paid duty against the excess paid duty. The Commissioner (Appeals) has place reliance on a decision of the Bombay High Court in CCE, Mumbai-II v. Standard Drum Barrel Mfg. Co. [2006 (199) E.L.T. 590 (Bom)] and I am in respectful agreement with the view taken therein. 8. It is clear that unjust enrichment aspect is a relevant consideration in finalisation of provisional assessment and adjustment of excess duty paid with short-paid duty is not allowable at the stage of finalisation of assessment before examining the question of unjust enrichment. I thus do not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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