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TMI Blog2015 (10) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty in respect of other clearances of that period on finalisation of provisional assessment and resultant excess if any arises upon such adjustment is refundable to the assessee without crossing bar of unjust enrichment being applicable. 1.2 Learned counsel submitted that it is rule of law that duringa period when clearances are allowed provisionally for no appropriate duty liability being determinable for that period, at the time of clearance, provisional assessment is made under Rule 7 of the Central Excise Rules, 2002. Later all such provisional assessments are finalised and duty liability determined. Duty paid in excess of actual liability on certain clearances is adjusted against short payment of duty and upon such adjustment, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curred for clearance of the goods. Therefore, that shall not form part of the assessable value. But the stand of Revenue is contrary. 2.3 The other second issue according to the appellant is that when sales returns are made by the buyers those clearances are not liable to excise duty and duty if any paid thereon is refundable. But Revenue opposes such submission on the ground that sales returns should not get consideration since those were goods cleared on payment of duty and not refundable. 2.5 The third issue raised by the learned counsel is that there are some mathematical errors in computation of assessable value. Such an error was created by misconception that the sale prices were cum-duty. But that it not so. Revenue says that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have deducted the short fall in the excess payment made. If there is no short fall in payment of duty, payment of interest does not arise. They have treated the duty payable under two categories. It was found in respect of some items the duty ¬payable after the final order is more than what was paid under provisional assessment. The approach of the authorities in this regard is erroneous, unwarranted and unsupported by any statutory provision. If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. If that is to be kept in mind, in the instant case, when the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er violated varied and similar other reasons. Therefore, directing payment of duty on sales returns shall be contrary to Commercial Parlance theory. 6. Mathematical calculation issue raised by learned counsel calls for examination of the invoices by Adjudicating authority granting fair opportunity of defence to the appellant to reach to a proper conclusion as to whether the prices were cum-duty. He shall deal the issue on the basis of his finding considering law and defence if any led by appellant. His conclusion shall be subject to adjustability of excess duty paid against short payment of duty and refund of excess amount if any arises upon ultimate adjustment as has been held herein before without bar of unjust enrichment being applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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