TMI Blog2018 (4) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... te was resolved by third Member. By majority order, it was held that adjusting of excess paid duty against short payment cannot be denied even if the assessee’s sister concern have taken the CENVAT Credit of the excess duty paid by the assessee - the majority decision has to be considered as Larger Bench decision and a binding precedent. Appeal dismissed - decided against Revenue. - E/1139/2008 - A/85949/2018 - Dated:- 4-4-2018 - Mrs, Archana Wadhwa, Judicial Member And Raju, Technical Member Shri Sanjay Hasija, Supdt. (AR) Shri A.B. Kulgod, Asst. Commr. (AR,), for appellant Shri Mayur Shroff, Advocate, for respondent Per: Archana Wadhwa Being aggrieved with the order passed by the Commissioner (Appeals), Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical amount under Section 11AC of the Central Excise Act, 1944. On appeal against the above order, Commissioner (Appeals) accepted the assessee's stand that the duty short paid is required to be adjusted against the excess paid duty inasmuch as the entire assessments have to be treated as provisional. He observed that the fact that the duty was being paid on the basis of costing available in the previous year's balance sheet was made known to the Revenue and it was in the knowledge of the department that the said cost arrived at in terms of the provisions of rule 8 is yet to be finalized based upon the cost appearing in the finalized balance sheet. 4.1 In such a scenario he held that the entire assessment have to be treated as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein there was originally difference of opinion between two Members as regards the adjustment of excess and short paid duty, which dispute was resolved by third Member. By majority order, it was held that adjusting of excess paid duty against short payment cannot be denied even if the assessee s sister concern have taken the CENVAT Credit of the excess duty paid by the assessee. For arriving at the above finding, the Tribunal referred to the Larger Bench decision in the case of Excel Rubber Ltd. v. Commissioner - 2011 (268) ELT 419 (Tri. LB) as also relied upon the Hon'ble Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt Ltd v. Commissioner of Central Excise, Bangalore - 2012 (276) ELT 332 (Kar.). The said decision ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment was resorted to by the assessee. In the case of S.D. Fine-Chem Ltd v. Commissioner of Central Excise - 2015 (324) ELT 181 (Tri, Ahmd.), such adjustment again was held to be permissible, 5.2 As against above, learned A. RB appearing for Revenue brought to our notice Tribunal's decision in the case of Krishna Electrical Industries Ltd v, Commissioner of Central Excise 2017 (352) ELT 67 (Tri. Del), denying such adjustments. However, it is seen from the said order that the attention of the Bench was drawn to the precedent decision and the same were not followed by observing that various case laws relied upon by the assessee are not on identical facts, without further drawing any such differentiation. 5.3 As we have already o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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