TMI Blog2013 (4) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ible and also pointed out that a plea for set-off the excess quantity of crude oil against shortage as refund should be adjusted against the differential amounts of cess demanded by department in the event of the quantity of crude oil actually received by the refinery being adopted as the basis for demands of cess under Section 15 of the Oil Industry (Development) Act, 1974. In this connection, the respondent referred the decisions of this Bench in their own cases viz. Final Order No. 1472/2006 dated 12-9-2006 (Cairn Energy India Pvt. Ltd. v. CCE & C, Visakhapatnam-II) reported in [2006 (9) TMI 41 - CESTAT,BANGALORE (Tri.-Bang.)]. Held that:- The excess quantities were considered for recovery of differential cess from the respondent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try (Development) Act, 1974 on crude oil cleared by the respondent in tanker vessels to the Visakha Refinery of M/s. Hindustan Pertroleum Corporation Ltd. (HPCL) during the periods June 2002 to August 2002, September 2002 to March 2003 and April 2003 to August 2003 respectively. The show-cause notices had also demanded interest on cess @ 24% p.a. under the relevant provisions of the Central Excise Rules and had also proposed penalties on the respondent under Rule 26 of the Central Excise Rules. The demands and other proposals were contested by the respondent. In adjudication of the dispute, the original authorities held that the respondent was liable to pay cess on that quantity of the crude oil which was acknowledged by HPCL in the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the power of remand and for this reason also his order was liable to be set aside. In this connection, reference was made to the Hon ble Supreme Court s judgment in MIL India Ltd. v. CCE, Noida [2007 (210) E.L.T. 188 (S.C.)]. 4. The learned counsel for the respondent, at the outset, submitted that, while excess quantity of crude oil as per Intake certificates vis- -vis Bill of Lading was considered by the Department for recovery of differential cess, no case of shortage of crude oil quantity as per Intake certificates vis- -vis Bill of Lading quantity was taken into account. The counsel pointed out that there were a few cases where the quantity of crude oil shown in the Intake certificates was lower than the quantity loaded in the tanke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every item specified in column 2 of the schedule, which is produced in India (including the continental shelf thereof) and - (a) removed to a refinery or factory; or (b) ... (2) Every duty of excise leviable under sub-section (1) on any item shall be payable by the person by whom such item is produced and in the case of crude oil, the duty of excise shall be collected on the quantity received in a refinery, (3) The duties of excise under sub-section (1) on the items specified in the Schedule shall be in addition to any cess or duty leviable on those items under any other law for the time being in force. (4) The provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder, including those relating to refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. . . The lower appellate authority did not have the power of remand and hence ought to have disposed of the assessee s appeals on merits after taking a conclusive view on the substantive issue. As rightly submitted by the learned Superintendent (AR), the impugned order is liable to be set aside on this very ground. 7. The learned counsel for the respondent has produced a copy of one of the memoranda of appeals filed with the lower appellate authority, and we have perused the same. One of the grounds raised by the assessee before the lower appellate authority reads thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as clarified by us in the case of Excel Rubber Ltd. v. CCE, Hyderabad, Final Order Nos. 133 134/2012, dated 29-2-2012 in appeal Nos. E/267 890/2006 [2012 (284) E.L.T. 399 (Tri. - Bang.)], any such adjustment between demand and refund of cess should be subject to the condition that the claim for refund is not hit by the bar of unjust enrichment. This answers the second question framed above. We find that the respondent did claim adjustment between demand and refund before the lower appellate authority but the claim was not considered. This is another reason for setting aside the impugned order. 8. In the aforesaid facts and circumstances, a remand of the case to the original authority is called for. Accordingly, we set aside the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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