TMI Blog2019 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Interest - Held that:- The appellants are liable for interest on the short paid duty which is to be determined after adjusting the excess duty paid. Unjust enrichment - Held that:- The refund has been wrongly rejected on the ground of unjust enrichment whereas in the facts and circumstances, unjust enrichment is not applicable. For the purpose of quantification of duty liability after adjustment and for quantification of interest liability, the case remanded back to the original authority for adjustment of duties and also for determination of interest payable by the appellant - appeal allowed by way of remand. - E/20866, 20867/2018-SM - Final Order No. 20227-20228/2019 - Dated:- 28-2-2019 - SHRI S.S GARG, JUDICIAL MEMBER Ms. Sudheeshna, Advocate For the Appellant Dr. J. Harish, Jt. Commissioner (AR) For the Respondent ORDER Per: S.S GARG These two appeals are directed against two different impugned orders both dt. 12/03/2018 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) in appeal No.E/20866/2018 confirmed the demand of ₹ 19,36,869/- under Section 11(A)(10) of the Central Excise Act (the Act for short); confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 10,52,311/- relatable to the duty which was paid in excess than the actual liability. The particulars relating to short payment of duty as well as refund claimed by the appellant are given herein below:- Particulars Appeal No. E/20866/2018 Appeal No. E/20867/2018 Period May 2012 to June 2014 April 2012 to April 2014 Demand / Refund Rs.19,36,869/- (Demand) Rs.10,52,311/- (Refund) Interest Rs.5,37,727/- N/A Penalty 25% of ₹ 19,36,869/- ₹ 5 lakhs N/A Demand paid and appropriated Duty Interest N/A Rs.19,43,869/- (paid and appropriated) Rs.35,444/- ₹ 4,88,213/- ₹ 5,37,727/- (paid and appropriated N/A 3. Heard both sides and perused records. Appeal No.E/20866/2018 4.1. In this appeal, initially the Additional Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2003(153) ELT 497 (SC)] wherein the Hon ble Apex Court recognizing the concept of adjustment of duties has categorically allowed for such adjustment of duties with respect to less and excess duty paid. Appellant has also relied upon the decision in the case of Usha Martin Ltd. Vs. CCE, Jamshedupur [2008(231) ELT 426 (Tri. Kol.)] wherein the Tribunal on identical set of facts has made a categorical observation that the annexures to show-cause notice clearly indicates duty paid more than duty liability. Further the Tribunal has held that in such circumstances, the Department trying to make out a case by wrongly applying the law and selectively quantifying the duty demand in respect of some of the consignments ignoring the total duty paid and that too beyond the lapse of the normal period of limitation prescribed under the law is nothing but high-handedness and the same cannot be given the sanctity of law. Further on the same issue, the learned counsel has also relied upon the following decisions:- i. Bajaj Tempo Ltd. Vs. CCE, Pune [2004(172) ELT 472 (Tri. Mum.)] ii. Tilrode Chem Pvt. Ltd. Vs. CCE, Bangalore [2011(264) ELT 306 (Tri. Bang.)] iii. TVS Motors Vs. CCE, Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is not applicable for an amount collected without authority of law. 6. On the other hand, the learned AR defended the impugned orders. 7.1. After considering the submissions of both sides and perusal of the material on record, I find that on account of the fault in SAP software, it happened that with regard to certain clearances, excess duty was paid and with regard to certain clearances, short duty was paid. Further I find that when this anomaly was noticed during the audit, the appellant paid the entire short duty at the instance of the Department along with interest and also requested the Department to adjust the excess duty of ₹ 10,52,311/- which was paid excess of the actual liability. But the Department did not allow the same and asked the appellant to file a refund claim and accordingly, the appellant filed refund claim which was rejected by the adjudicating authority partly on the ground of time bar and partly was sanctioned but credited to the Consumer Welfare Fund by holding that the appellant has failed the test of unjust enrichment. Further the first appellate authority rejected the refund only on the ground of unjust enrichment. Further I find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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