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Tata Motors Ltd. Versus Commissioner of Central Excise, Pune-I

2015 (10) TMI 1032 - CESTAT MUMBAI

Short payment of duty - whether an adjustment is possible against the short payment of duty vis-a-vis excess payment made by the assessee during the relevant period when the assessments were provisional and subsequently finalized - Held that:- Appellant had sought provisional assessment during the material period; on finalization, there is an excess and short payment and the adjudicating authority has ordered for adjustment of the excess payment towards the short payment and also ordered for ref .....

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d by the Lordships and addressed very clearly indicates that there has to be harmonious reading of the provisions of Rule 7 of the Central Excise Rules, 2002. - law as laid down by the Larger Bench of this Tribunal which specifically lays down that excess payment can be adjusted against any dues of an assessee is the ratio which has been correctly followed by the adjudicating authority in the case in hand. Be that as it may, the reliance placed by the learned D.R. on the Larger Bench decision ma .....

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Dated:- 13-4-2015 - M V Ravindran, Member (J) For the Appellant : Shri Rajesh Ostwal, Adv For the Respondent : Shri V K Shastri, Asst. Commissioner (AR) ORDER Per M V Ravindran These two appeals are directed against Orders-in-Appeal No. PI/27/07 dated 06.03.2007 and PI/VSK/247/08 dated 20.11.2008. As both the orders are interconnected and arising on the very same appellant, these appeals are disposed of by a common order. 3. # In Appeal No. E/1703/07 the issue is regarding adjustment of excess p .....

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amount which paid in excess. Aggrieved by such an order, Revenue preferred an appeal before the first appellate authority. The first appellate authority after following due process of law reversed the decision taken by the adjudicating authority and confirmed the demand of duty by setting aside the adjustment of excess duty paid against short payment. 4. In Appeal No. E/194/09 the appellant had filed refund claim consequent to the order passed by the adjudicating authority which was rejected on .....

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essment is covered by the provisions of Rule 7 of Central Excise Rules, 2002 and has been contested before the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. vs. CCE - 2012 (276) ELT 332 (Kar.) which has been followed by the Division Bench of the Tribunal in the case of CCE v. BSL Ltd. - Excise Appeal No. 3238 of 2005 . He would take me to the said ratio as has been laid down by the Hon'ble High Court and followed by the Tribunal. 6. Learned D.R. on .....

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e Bench has held that excess payment cannot be adjusted against short payment. 7. I have considered the submissions made by both sides and perused the records. 8. The only issue involved in this case is whether an adjustment is possible against the short payment of duty vis-a-vis excess payment made by the assessee during the relevant period when the assessments were provisional and subsequently finalized. It is undisputed that the appellant had sought provisional assessment during the material .....

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r Auto Parts Pvt. Ltd. (supra). Though the Lordships were considering as to whether any interest is liable to be paid to the assessee therein for delayed payment, the substantial question of law which was considered by the Lordships and addressed very clearly indicates that there has to be harmonious reading of the provisions of Rule 7 of the Central Excise Rules, 2002. 8.2 After harmonious reading of the said provisions, Lordships have held as under: "7. A perusal of the aforesaid provisio .....

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sessment. Thereafter, a final assessment order is to be passed. If after the final assessment; if it is found that there is a short fall in payment of duty, sub-rule (4) provides for payment of interest on such short payment of duty. Whereas sub-rule (5) provides for refund of excess duty paid. 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liabl .....

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which is to be taken into consideration. If after taking into consideration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest." 8.3 I notice that the Principal Bench of this Tribunal in the case of BSL Ltd. (supra) following the law as laid down by the Hon'ble High Court of Karnataka on similar issue held as .....

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t, the excess payment of duty can be adjusted against the short payment. This judgment is with regard to the provisions of Rule 7 of the Central Excise Rules, 2002. In our view the judgment of Hon'ble Karnataka High Court is binding on the Tribunal. In view of this, there is no illegality or impropriety in Commissioner (Appeals)'s order dt 5/8/05, The Revenue's appeal No. 3238 of 2005 is accordingly dismissed. The C.O. also stands disposed of." 8.4 As against the above referred .....

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