TMI Blog2014 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount after adjustment subject to filing of claim therefore - if there is an excess payment in one category of duty and there is short payment in another category both can be adjusted - there was short payment of central excise duty and excess payment of education cess and in this case it is the other way round - appellant has made out a prima facie case for waiver. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted - Stay granted. - E/26176/2013-DB - - - Dated:- 20-3-2014 - B S V Murthy and S K Mohanty, JJ. For the Appellant : Mr Y Sreenivasa Reddy, Adv, For the Respondent : Mr S Teli, AR ORDER Per: B S V Murthy: During the month of January 2011 according to the Revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess payment made under central excise head may be transferred to cess head. Nevertheless the Range Officer issued show-cause notice and proceedings have culminated in the demand as mentioned above. He submits that the Central Board of Excise Customs in Circular No. 4/93-CX.8, dated 23.04.1993 had instructed field formations to allow such adjustments. Further he also relied upon the decision in the case of Commissioner Vs. South Asian Petrochem Ltd . [2009 (233) E.L.T. A133 (Cal.)] to submit that adjustment of short paid central excise duty against education cess paid in excess can be made. The learned AR would rely on the decision of the Tribunal in the case of C.C C. Ex., J K Vs. Bharat Box Factory Ltd. [2011 (265) E.L.T. 366 (Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. In our opinion, we need not go into this controversy at this stage in view of the fact that here we are looking at adjustment of payment of excess payment in one case by short payment in respect of education cess. We find that the issue is covered by the circular issued by the Board and the decision of the Hon'ble High Court of Kolkata. Paragraph 2 of the Board's circular is relevant and is reproduced below: It is observed that Rule 57A and Notification 17/86-CE issued thereunder provide for utilization of credit of any of the duties of excise paid on inputs for the payment of any duty of excise leviable on final product. This classification had earlier conveyed vide Board's Circular No. 20/89 dated 26.06.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jurisdictional Commissioner to make adjustment between the short payment and excess payment made by the appellants therein. As regards the balance amount, the Tribunal directed that after adjustment the same may be considered for refund provided the assessee prefers a refund claim as required under the law. In view of that we do not find that there is any merit in this application to admit this appeal so filed by the appellant/petitioner. Hence this application is dismissed, however without any cost. All parties concerned are to act on a Xerox signed copy of this order on the usual undertakings. Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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