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2016 (11) TMI 14 - CESTAT BANGALORE

2016 (11) TMI 14 - CESTAT BANGALORE - TMI - Adjustment of excess payment of duty with the short payment of duty - Price Variation Clause - manufacture of communication equipment - freight charges - Packing and Forwarding charges - freight charged at the rate of 1% through commercial invoices in additional to the amounts of freight charged and claimed in the respective invoices (for which abatement already stands granted) - Held that: - the decision in the case of Hindustan Zinc Ltd. vs. Commissi .....

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n, 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 Excise Tariff Act, 1985. They sell their goods substantially to the Department of Telecommunication (DoT) w .....

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bject matter of the present appeals relate to finalisation of provisional assessments for different periods of time, but involve similar issues. The disputes may be crystallised as follows: (i) In additional to the amounts of freight charged and claimed in the respective invoices (for which abatement already stands granted), the appellant was found to have charged freight at the rate of 1% through commercial invoices. Revenue is of the view that this amounts need to be added on to the assessable .....

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ssessments. 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 defi .....

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ssee has taken refund by suo motto by adjusting the excess duty paid towards the duty short paid, for the entire year. Duty short paid cannot be adjusted towards excess payment refund has to be claimed proving that incidence of duty has not been passed on. 2.1 As against the confirmation of differential duties by disallowing adjustments as above, by the original adjudicating authorities, the assessee filed appeals to the Commissioner (A) who held that the duty excess paid by the assessee is allo .....

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needs to be put to the process of refund under Section 11B of the Central Excise Act, 1944. In the case of duty excess paid, the 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. Hear .....

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68) E.L.T. 419 (Tri.-LB). The Larger Bench in this case has decided that before grant of such adjustments, the authority will have to ascertain whether such excess amount is to be actually refunded to the assessee or is liable to be credited to the consumer benefit fund by examining the same with reference to the principle of unjust enrichment. Further, the Larger Bench held that the burden of proof in this regard would lie upon the assessee. 5.1 Learned DR further submitted that the Hon ble Hig .....

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nly with reference to the interest payable. Finally, she submitted that the impugned order should be set aside following the decision of the CESTAT in the Larger Bench. 6. The learned advocate on behalf of the respondent-assessee defended the impugned order. He submitted that the decision of the Larger Bench in the case of Excel Rubber Ltd. (supra) as well as the decision of the Hon ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (supra) were considered in the Three .....

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