TMI Blog2016 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... he short-paid duty during the period of provisional assessments, upon finalization of the assessments - Revenue's view not justified - appeal dismissed - decided against Revenue. - E/820/2007-DB & E/877/2007-DB - Final Order No. 21010-21011 / 2016 - Dated:- 25-10-2016 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Smt. Ezhilmathi, AR For the Appellant Shri B. V. Kumar, Advocate, Mr. Mohammed Yousuf, AR For the Respondent ORDER Per V. Padmanabhan Both the appeals deal with the same issue for different periods and hence, are decided together in this common order. Appellant is a manufacturer of communication equipment falling under Chapter Heading 85 of the First Schedule to Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying short-paid duty, the appellant suo motto adjusted the excess duty paid during the period of provisional assessments. Such suo motto adjustment of excess duty paid from the short-paid duty was not accepted by Revenue for the following reasons: As per erstwhile Rule 9B of CER, 1944, when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. Therefore, the assessee is required to pay the duty short paid and the duty exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty burden has already been passed on to the customers and no proof contrary to the same has been placed on record. Consequently, the Commissioner (A) has erred in the impugned order to allow such adjustments. 3. The respondent-assessee also has filed cross-objections in the matter contending that the adjustment permitted in the impugned order is permissible. 4. Heard Smt. Ezhilmathi, learned AR for the Revenue as well as Shri B. V. Kumar, learned advocate appearing on behalf of the respondent-assessee. 5. The learned DR submitted that the issue whether the excess duty-paid can be adjusted against the duty short-paid at the time of finalisation of provisional assessments under the erstwhile Rule 9B of the Central Excise Rules, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Hon ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (supra) were considered in the Three-Member Bench decision in CESTAT, Delhi in the case of Hindustan Zinc Ltd. vs. CCE reported in 2015-TIOL-2427-CESTAT-DEL. In this decision, it has been held that adjustments at the time of finalisation of provisional assessments would be permissible without putting the excess duty paid to the test of unjust enrichment. He also submitted that the Bangalore Bench of CESTAT has already decided an identical issue in their own case for a different period vide Final Order No.20185/2016. In this decision, the benefit of adjustment stands extended in their favour of the respondent-assessee by following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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