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M/s Jonas Woodhead And Sons India Ltd. Versus Commissioner of Central Excise, Chennai-IV

Denial of refund claim - Adjustment of excess payment of duty against short payment - Whether duty paid in excess in respect of certain clearances made during a material period is adjustable against short payment 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 - Held that:- there is no warrant in law to de .....

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shortage of duty paid is allowed and excess duty paid is refundable without bar of unjust enrichment applicable.

Second claim of the appellant that sales return are not dutiable being goods returned back by buyers is justified. Appellant does not incur liability when cleared goods come back to his custody within the knowledge of excise authority. Revenue has no finding to show that the sales returns were made by the arrangement of the parties to cause prejudice to the interest of Rev .....

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r (T),JJ. For the Appellant : Mr N Viswanathan, Adv. For the Respondent : Mr K P Muralidharan, AC (AR) ORDER Per: D N Panda: Learned counsel arguing on all these appeals submits that the moot question involved in these appeals is whether duty paid in excess in respect of certain clearances made during a material period is adjustable against short payment of duty in respect of other clearances of that period on finalisation of provisional assessment and resultant excess if any arises upon such ad .....

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al liability on certain clearances is adjusted against short payment of duty and upon such adjustment, excess duty paid is refundable without bar of unjust enrichment being applicable to such refund. 1.3 In finalization of assessment, an integral approach is made to determine ultimate duty liability in respect of all clearance for the relevant period. Since such situation is outcome of application of lawand excess duty paid is refundable, bar of unjust enrichment is not applicable. 3. Revenue .....

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r, that is of no sense to law in view of the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs Commissioner of Central Excise, LTU, Bangalore reported in 2012(276) E.L.T.332 (Kar.). 2.2 So far as appeal nos. E/41680 to 41682/2014, is concerned he submits that other than the issue of adjustment of short payment against excess payment involved in these appeals, additional three issues arise. One such issue is whether cost of freight incurred by the appella .....

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hould 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 is finding to that effect in adjudication. Therefore, stand of Appellant should fail. 3.1 Heard both sides on the question of adjustment of excess pay .....

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the consequence of each clearance on case to case basis to determine shortage and excess of payment of duty and consequence thereof. The ultimate duty liability of a relevant period is to be determined in final assessment taking into consideration entire clearance of that period in aggregate and if there arises excess payment of duty upon such finalization of making due adjustment, that shall be refundable. Hon'ble High Court examining the issue, inthe case of Toyota Kirloskar case (supra) .....

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. 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 co .....

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