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2015 (10) TMI 1032

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..... The very same provisions were considered by the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (2011 (10) TMI 201 - KARNATAKA HIGH COURT). 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. - 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 .....

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..... llant during the relevant period in question. The adjudicating authority held that such adjustment is to be done and ordered for refund of an 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 the ground that the refund claim is premature as an appeal was disposed of in favour of the Revenue by th .....

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..... ed 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 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 refund of the amount which is excess. 8.1. I find that the issue is no more res integra. The provisions of Rule 7 of Central Excise Rules, 2002 covers t .....

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..... 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 liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. If after taking into consideration the dut .....

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..... Tribunal in the case of Excel Rubber Ltd. (supra) and My Car Pune Pvt. Ltd. (supra) will not carry the case of revenue any further. I find that in the case Excel Rubber Ltd., the Larger Bench, in para 50, has specifically recorded that excess amount can certainly be adjusted towards any other duty liability of such assessee under the Excisee Act, 1944 and Rules made thereunder, however, such adjustments are subject to the applicability of the principle of unjust enrichment. 8.5 In the case of My Car Pune Pvt. Ltd., though the issue dealt with regarding the excess and short payment and adjustment thereof, I find that the Tribunal remanded the matter back to the adjudicating authority to reconsider the issue after going through the reco .....

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