TMI Blog2014 (12) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notices have been issued after a period of one year from the date of finalisation of assessment, they would be clearly time-barred. Therefore, in respect of these two quarters, the contention of the appellant that the show cause notice is time-barred has merit. There is an error committed by the adjudicating authority by taking the transaction value at which the greatest aggregate quantity of goods were sold, we observe that as per Rule 2(b), normal transaction value means the transaction value at which the greatest aggregate quantity of goods are sold and, therefore, this is the price which has to be adopted for determination of transaction value at the time of removal of the goods from the factory. Therefore, this find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest thereon for the period October, 2008 to September, 2009. Aggrieved of the same the appellant is before us. 2.1 All the three appeals arise out of finalisation of provisional assessment for four quarters i.e. October, 2008 to December, 2008, January, 2009 to March, 2009; April, 2009 to June, 2009 and July, 2009 to September, 2009. The appellant is a manufacturer of viscose filament yarn and sells the goods through depots situated all over India. The appellant offers discount on the depot sale price. These discounts are made known upfront though the quantum is finalised at the end of the quarter. Therefore, the appellant resorted to provisional assessment which were finalised periodically, after the quarter had ended. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en confirmed in the impugned orders along with interest. 3. The learned counsel for the appellant submits that for the quarters October, 2008 December, 2008 and January, 2009 to March, 2009, the discounts were finalised and the appellant was granted refunds. The finalisation of assessments was not challenged by the Revenue and has thus become final. Therefore, the demand of duty vide show cause notice dated 6-5-2010 for an amount of ₹ 21,17,875/- would be barred by limitation. 3.1 As regards the findings of the lower appellate authority that rate difference is not eligible for deduction, the rate difference is nothing but a price adjustment on account of price fluctuations in the market price of the finished goods. The price ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g before the Tribunal, the Revenue has raised a new ground saying that the method of finalisation of assessment adopted by the Assistant Commissioner was erroneous inasmuch as he sought to adjust excess duty payments against short-duty payments. This ground was not taken either in the show cause notice or in the review orders of the Revenue while challenging the final assessment orders. In any case, it is permissible while finalising provisional assessments to adjust excess duty payments towards short payment and arrive at the net duty payable or refundable. It is also submitted that the appellant had produced all the records such as invoices, working sheets and proof that duty claimed as refund was not passed on to anybody. 3.3 The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be done automatically unless the excess amount ascertained in final assessment refundable/adjustable is subject to principles of unjust enrichment. The learned Additional Commissioner (AR) also relies on the decision of this Tribunal in the case of Malwa Cotton Spinning Mills Ltd. v. Commissioner of Central Excise, Ludhiana - 2011 (272) E.L.T. 413 wherein it was held that the goods cleared from depot without giving any discount and charging duty on full assessable value which also included the amount of discounts given afterwards by way of credit notes would show that incidence of duty was passed on to buyers and, therefore, credit notes issued subsequently would not alter this position. Accordingly, he submits that the impugned orders ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n value at which the greatest aggregate quantity of goods were sold, we observe that as per Rule 2(b), normal transaction value means the transaction value at which the greatest aggregate quantity of goods are sold and, therefore, this is the price which has to be adopted for determination of transaction value at the time of removal of the goods from the factory. Therefore, this finding of the lower appellate authority is clearly wrong. 5.2 As regards the adjustment of excess duty payments against short-duty payments, Excel Rubber Ltd. case (supra), relied upon by the Revenue, no doubt, says that such adjustment has to be considered subject to applicability of principles of unjust enrichment. If the appellants are able to show that they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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