TMI Blog2015 (3) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... any refund. However, that order does mention that after the Commissioner (Appeals)'s order dated 24/7/98, the respondent had filed a refund claim for an amount of ₹ 1,23,82,872/- and as conceded by Shri B.L Narasimhan, the learned Counsel for the respondent, this refund claim includes the amount of ₹ 86,54,690/- mentioned in the impugned order of the Commissioner (Appeals). Thus the issue of refund of ₹ 1,23,82,872/- which includes the amount of ₹ 86,54,690/-became final vide order-in-appeal dated 28/11/03. For this reason only, the Assistant Commissioner in his order dated 29/3/05 has demanded the duty of only ₹ 11,58,767/- and has not ordered the adjustment of the amount of demand against any amount b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the sale price at the nearest depot should be adopted as the assessable value. Another point of dispute is deduction of turnover tax, depot expenses and cash discount. These issues were decided by the Commissioner (Appeals) vide order-in-appeal dated 24/07/98 by which she held that- (a) depot price for each depot should form the basis for arriving at the assessable value in respect of clearances to that particular depot; (b) deduction of turnover tax and deduction of discount to hospitals and nursing homes is permissible in view of the Apex court decision in the case of Bombay Tyre International- 1994 (17) E.L.T. 329; and (c) deduction of the depot expenses is not permissible. Having decided these issues, the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to Commissioner (Appeals) against this order and the Commissioner (Appeals) vide order-in-appeal dated 10/11/05 ordered adjustment of the duty demand of ₹ 11,58,767/- against the excess payment of duty of ₹ 86,54,690/-. Against this order of the Commissioner (Appeals), the Revenue is in appeal. 2. The appeal is mainly on the ground that since the assessments during the period of dispute were not provisional and as such Rule 9B of the Central Excise Rules, 1944 was not applicable, there was no authority for adjustment of the short payment of ₹ 11,58,767/- determined by the Assessing Officer against the excess payment of ₹ 86,54,690/-. 3. Heard both the sides. 4. Shri R.K. Grover, learned DR, assailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,767/-, there was no justification for the Commissioner (Appeals) to order adjustment of the duty demand of ₹ 11,58,767/- against the refund of ₹ 86,54,690/-, and that in view of this, the impugned order is not correct. 5. Shri B.L. Narasimhan, Advocate, the learned Counsel for the respondent, pleaded that though there was no formal provisional assessment order during the period of dispute, the assessments have to be treated as provisional, that while finalising the provisional assessment, the excess payment of duty is required to be adjusted against short payment and in this regard the bar of unjust enrichment does not apply, that in this regard, he relies upon the judgment of Hon'ble Karnataka High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me; (c) the respondent would not be eligible for deduction of the depot expenses and (d) there would be eligible for deduction of cash discount wherever it has been passed on. 8. The Commissioner (Appeals) having decided these issues directed the Assistant Commissioner to re-quantify the duty demand for the period of dispute. The duty demand for the period of dispute is covered by 8 separate show cause notices by which duty amounted to ₹ 1,55,11,932/- has been demanded. In pursuance of the Commissioner (Appeals)'s order, the Assistant Commissioner vide order-in-original dated 29/3/05 confirmed the demand of only ₹ 11,58,767/- and the operative portion of the order is totally silent about any refund. However, that or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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