TMI Blog2014 (9) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... and no adjustment of excess duty paid during a month against short payment during the same month should have been allowed. Against the same order dated 11/03/05 of the Deputy Commissioner by which he had disallowed the adjustment of excess payment of duty of ₹ 3,54,467/- during certain period of provisional assessment against the short payment during, the period of ₹ 14,60,053/-, the assessee had filed an appeal before the Commissioner (Appeals) and in respect of that appeal, the Commissioner (Appeals) vide order-in-appeal dated 05/08/05 had reversed the part of the Deputy Commissioner's order refusing the adjustment of excess payment against the short payment and, as such, had allowed the adjustment of excess payment agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant sent the grey fabrics manufactured by them to their job workers for processing and got back the processed fabrics from the job workers and the processed fabrics were sold by them. The duty on the grey fabrics sent by them to job workers had been paid on provisional basis in terms of a provisional assessment order dated 11/03/03 passed by the Deputy Commissioner in terms of Rule 7 of the Central Excise Rules, 2002. The reason for the provisional assessment was that the appellant in respect of the grey fabrics sent to job worker for processing were required to pay duty in terms of Rule 8 of the Central Excise Valuation Rules, 2000, i.e. 115%/110% of the cost of production and the cost of production could be determined only after final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty short paid during finalization of the provisional assessment. Against this order of the Commissioner (Appeals), the Revenue is in appeal and in respect of Revenue's appeal, M/s BSL Ltd . have filed a cross objection. 1.2 The Jurisdictional Commissioner of Central Excise reviewed the Deputy Commissioner's order dated 11/03/05 finalizing the provisional assessment and directed him to file an appeal before the Commissioner (Appeals), as he was of the view that the Deputy Commissioner while finalizing the provisional assessment should not have permitted the adjustment of excess payment of duty during a month against the short payment during the same month. According to the Commissioner, the Deputy Commissioner while finalizin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in the case of Excel Rubber Ltd. vs. CCE, Hyderabad reported in 2011 (268) E.L.T. 419 (Tri.-LB), while finalizing provisional assessment, the excess payment of duty cannot be adjusted against the short payment, as the principles of unjust enrichment is applicable to finalization of provisional assessment and if on finalization of provisional assessment, there is any excess payment of duty for same period the assessee is required to file an application under Section 11B before the Assistant/Deputy Commissioner for its refund and the excess payment cannot be adjusted against short payment, that as regards the appeal filed by the assessee against order-in-appeal dated 30/11/07 passed by the Commissioner (Appeals), there is no infi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, is not sustainable, that as regards the Revenue's appeal against order-in-appeal dated 04/08/05 passed by the Commissioner of Central Excise (Appeals) by which the Commissioner (Appeals) had allowed the adjustment of excess paid duty against the duty held to be that paid while finalizing the provisional assessment, there is no infirmity in the impugned order, that the basic issue involved in this appeal is as to whether while finalizing a provisional assessment, the excess payment of duty can be adjusted against the short payment, that though on this point the decision of the Larger Bench of the Tribunal in the case of Excel Rubber Ltd. vs. CCE, Hyderabad (supra) is against the assessee, recently Hon'ble Karnataka High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order-in-appeal dated 05/08/05 had reversed the part of the Deputy Commissioner's order refusing the adjustment of excess payment against the short payment and, as such, had allowed the adjustment of excess payment against the duty demand during finalizing the provisional assessment. Once the Commissioner (Appeals) passed this order in respect of appeal against the order-in-original dated 11/03/05 of the Deputy Commissioner, in accordance with the law laid down by the Apex Court in the case of Kunhayamed vs. State of Kerala (supra) , the Deputy Commissioner's order dated 11/03/05 cease to exist and merges with the Commissioner (Appeals)'s order dt 5/8/05 and what remains is the Commissioner (Appeals)'s order dated 05/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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