TMI Blog2007 (7) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs. Daya Chaudhary, ASGI with Mrs. Kamla Malik, Advocate, for the appellant. [Judgment per M.M. Kumar, J.]. - This appeal filed under Section 35-G of the Central Excise Act, 1944 (for brevity, 'the Act'), is directed against order dated 27.12.2005, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal'). The revenue has claimed that the following substantial questions of law would arise from the order dated 27.12.2005, passed by the Tribunal:- (i) Whether in the absence of provisional assessment, duty paid in excess can be adjusted against duty short paid, especially when the refund claim of excess duty is otherwise time barred? (ii) Whether in view of non availment of modvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee firm had declared the assessable value of the goods on the basis of cost of production/manufacture prevalent during the period from December 1998 to November 1999 @ Rs. 424.29 per kg and December 1999 to November 2000, whereas the goods were cleared during the period September 2000 to March 2001, which should have been assessed at the prevalent assessable value of Rs. 484.98 per kg, which was determined on the basis of cost of goods during the period December 1999 to November 2000, relevant to the financial year 2000-01. As the differential duty on a differential value @ Rs. 60.69 per kg. was required to be determined, a show cause notice dated 8.10.2001 was issued demanding central excise duty of Rs. 5,80,841/- under Section 11A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thmetical error. It was argued before the Tribunal that on account of error of calculation there was excess demand of about Rs. 1.20 lacs and the demand of central excise duty has been worked out after taking into account only those cases where less payment was made and ignored the payments where more central excise duty was paid. It was further submitted that the respondent was entitled to the benefit of Modvat credit on the inputs going into production of the goods in question. The Tribunal after hearing the parties has recorded the following categorical findings:- " We have perused the record and considered the submissions made by both sides. There is merit in the'- appellants contentions under all the three heads. The very first claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 6. Having heard learned counsel for the revenue, we are of the considered view that the questions of law claimed would not emerge from the order passed by the Tribunal. According to the first substantial question of law claimed, the claim of adjustment of duty paid in excess made by the respondent is claimed to be time barred. A close scrutiny of the order passed by the Tribunal would show that no such issue was raised before the Tribunal. Therefore, adjustment as ordered by the Tribunal would not suffer from any legal infirmity. Likewise, the second question would also not arise from the order of the Tribunal. The revenue did not raise any argument before the Tribunal that Modvat credit would not be allowed selectively in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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