TMI Blog2014 (7) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act provides recovery of some dues to Government. In the present case, there is no dispute that the differential duty short paid is recoverable from the appellant and, therefore, the adjudicating authority has rightly adjusted the sanctioned refund amount from the differential duty in terms of Section 11 of the Act - adjudicating authority rightly adjusted the refund claim against the demand of differential duty - Following decision of Excel Rubber Ltd. Vs Commissioner of Central Excise, Hyderabad reported in [2011 (3) TMI 527 - CESTAT, NEW DELHI (LB)] - Decided against assessee. - E/59 & 60/2006-SM - Final Order Nos. 40207-40208/2014 - Dated:- 5-3-2014 - P K Das, J. For the Appellant : Mr S M V Raman, Adv. For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. He submits that the adjudicating authority should not adjust refund amount against the differential duty. It is further submitted that the adjustment of excess amount by the impugned order is double adjustment, which is not permitted under the law. 5. The learned Authorised Representative submits that the adjudicating authority after examining the refund in terms of Section 11B of the Act had sanctioned the refund claim which was adjusted against the demand of differential duty under Section 11 of the Central Excise Act, 1944. He relied upon the Larger Bench of the Tribunal in the case of Excel Rubber Ltd. Vs Commissioner of Central Excise, Hyderabad reported in 2011 (268) E.L.T. 419 (Tri.-LB) [Para 50]. 6. After considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the principle of unjust enrichment. Therefore, before grant of adjustment, the authority will have to ascertain whether such excess amount is to be actually refunded to the assessee or is liable either wholly or partly to be credited to the account of consumer benefit fund and only thereafter make an order of adjustment to the extent of amount is found to be actually refundable and not liable to be credited to the account of consumer benefit fund. Needless to say, that the burden of proof in this regard would lie upon the assessee. The point for consideration is therefore answered accordingly. 7. In view of the above discussion and the decision of the Larger Bench of the Tribunal in the case of Excel Rubber Ltd. (supra), I find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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