TMI Blog2023 (4) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay shortfall duty during a particular period and denied excess payment made during another period of same financial year, entire purpose of keeping assessment provisional would become a futile exercise. In that case, it becomes a case of short paid/assessed duty for that period and ending with recovery of same. Further, adjustment of excess paid duty against short payment not to be denied on taking of Cenvat credit by sister unit inasmuch as it is assessee s total duty liability after adjustment of short paid duty with excess paid duty which would be available as credit to other unit. The Tribunal, Mumbai Bench in the case of M/S MERCEDES-BENZ INDIA PVT. LTD. VERSUS CCE, PUNE-II [ 2016 (10) TMI 79 - CESTAT MUMBAI] also held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Present order disposes of the appeal arising out of Order-in-Appeal bearing No. 86/2021-22 dated 28.03.2022. The relevant facts in brief are as follows:- That the appellant is engaged in the manufacture and sale of foot ware components i.e. Uppers/ Footbed/ Midsole, Bottom etc. Appellant was transferring those products to their Unit-1 on payment of Central Excise Duty on such assessable value of the said products as used to be arrived at in terms of Rule 8 of Central Excise (Valuation) Rules, 2000. However, the appellants opted for a provisional assessment of duty on the said products for the clearances in the period of 2016-17. 2. The Department scrutinized the Cost Accounting Standard (CAS) 4 data of the appellant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with the help of two different units. Unit No.1 has been existing since March, 2010 and was availing the area based exemption in terms of Notification No.50/2003. However, the said exemption came to an end with effect from March, 2010 itself. The appellant established its second unit in August, 2016. Since then the appellant is discharging its duty liability on cost of production plus at the rate of 10% as per CAS 4. It is mentioned on behalf of the appellant that duty liability was initially discharged under provisional assessment criteria. When the appellant applied for finalisation of the provisional assessment that the Department has failed to adjust the excess duty paid. 4.1 Ld. Consultant has further impressed upon that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) (Cost + 10%) Total Monthly Duty as per CAS-4 @ 6% (Rs.) Excess duty paid (Rs.) Short duty paid (Rs.) 1 2 3 4 5 6=(3-5) 7 = (5-3) Aug. 16 1743176 104591 1533244 91995 12596 NA Sept.16 6526556 391593 5997912 359875 31718 NA Oct. 16 4964598 297876 4721323 283279 14597 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment is permitted at the time of finalisation of assessment in terms of rule 7 of the Central Excise Rules when the appellants had neither take the refund of said excess nor had ever availed Cenvat Credit of duty liability discharged. The Larger Bench of this Tribunal in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur reported as 2016 (336)ELT 328 (Tri-Del.) has decided this issue. It has been concluded as follows:- Cumulative reading of all sub-rules of Rule 7 of Central Excise Rules, 2002 would show that amount payable by assessee or refundable to him subjected to outcome of final assessment. If on finalisation of assessment, assessee required to pay shortfall duty during a particular period and denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is allowable at the time of finalization of provisional assessment if the assessee is able to establish that such excess payment has not been passed on but borne by the assessee. 8. In the present case, Unit II is not even the sister concern. Appellant admittedly has not taken Cenvat Credit. These admissions when are read with above discussed settled legal position, it stands clear that the adjustment of excess duty paid is liable at the time of finalisation of the provisional assessment. No Cenvat Credit ever been taken, admittedly, by the appellant. The question of any unjust enrichment of the appellant does not at all arise. In view of these observations, it is held that the Adjudicating Authorities below have wrongly denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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