2009 (6) TMI 798

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..... the records. 3. The short issue involved in the instant case is whether the duty short paid on certain products can be adjusted against the duty excess paid on certain other products. 4. The applicants have relied upon the following case laws in support of their claim that the duty short paid can be adjusted against the duty excess paid. (i)      M/s. Goetze (India) Ltd. v. Commissioner of Central Excise, Bangalore [2008-TIOL-1897-CESTAT-BANG]. (ii)    Sangam Suitings v. Commissioner of C.Ex. Jaipur-II [2008 (227) E.L.T. 218 (Tri.-Del.)] (iii)   Commissioner of C.Ex. Jaipur-II v. Bhilwara Processors [2006 (205) E.L.T. 996 (Tri.-Del.)] (iv)   Collector of Central Ex .....

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..... ss duty paid should be adjusted against short payment. Adjustment is possible provided the excess duty paid has not been passed on to the buyers and the assessee is entitled to the refund. But the adjustment definitely cannot be allowed in a case where the excess duty paid has been passed on to the buyers and the assessee is not entitled to the refund on the ground of unjust enrichment. In case before us, it is seen that the refund of the excess duty paid by the applicants was lodged by them before the Assistant commissioner, who rejected the same on the ground that excess duty paid had been taken into account by the input receiving unit, while arriving at the valuation of their finished goods., which implies that the incidence of duty has .....

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..... scussions, we are of the view that the applicants have not made out a strong case for the complete waiver of the pre-deposit of the duty + interest demanded and penalty imposed. Keeping in view the facts and circumstances of the case, we direct the applicants to pre-deposit Rs. 63,93,405/- together with interest within 8 weeks and report compliance on 25-8-09. On pre-depositing the said amounts within the stipulated period, the pre-deposit of the equivalent penalty of Rs. 63,93,405/- is dispensed with and recovery thereof stayed pending disposal of the appeal. Failure to comply with the above directions will result in the dismissal of their appeal without any further notice to them. (Pronounced in Court on 22-6-2009)
Case laws, Decisio .....

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