TMI Blog2004 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by them after crossing the SSI exemption limit. The appellants were working under SSI Notification No. 1/93, dtd. 28-2-93 as amended. In the impugned Orders-in-Original the Assistant Commissioner confirmed duty demands of Rs. 1,00,322/- and Rs. 11,650/- respectively on the ground that the assessee had paid duty at the rate of 10% instead of 15% after crossing their SSI exemption limit of Rs. 75 lakhs as per Notfn. No. 1/93, dtd. 28-2-93 as amended which resulted in short payment of duty, while in appeal No. E/1859/99 the amount of Rs. 11,650/- was confirmed on the ground that the assessee had paid at the rate of 5% instead of 10% as per slab rate for Rs. 50-75 lakhs as per Notfn. No. 1/93, dtd. 28-2-93 as amended and also disallowed M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and if there is short payment, the same, on demand should be paid after observations of due process of verification. He has noted that process of refund of short payment can be adjusted after filing the RT 12 return or separately within the time limits provided in the law. He has noted that the appellant's plea that the short payment be adjusted against excess payment is not permissible under law. While Order-in-Appeal No. 853/99-C.E. the grounds taken by the appellants was that they have followed the slab rate of duty exactly as per the defined norms, although there has been a few cases of overlapping in the slab because of the fact that some non-payment duty amount were not separated while arriving at the exact cut-off point over the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ten days of receipt of copy of the return duly countersigned by a Superintendent of Central Excise. Drawing attention to the provisions of Rule 173F(1) and sub-rule (2) which is incorporated in Para 8 of the Order, ld. Counsel submits that as held in Para 10 that the appellant is entitled to ask for set off and the Department has to calculate the excess payment as well as under payment and after adjusting one against another raise a demand for the remaining amount of duty, if any. He submits that the same view was expressed by the Tribunal in the case of Kothari Pouches Ltd. v. CCE, Noida [2003 (159) E.L.T. 927 (Tri. - Del.)] wherein the Tribunal relying on the judgment of the Apex Court in the case of CCE, Hyderabad v. Divya Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 (91) E.L.T. 497 (S.C.)] has also laid down a similar proposition with regard to duty paid to be adjusted in current account in terms of Rule 173-I. 4. Ld. DR countered the arguments by stating that the impugned order passed by the appellate authority is correct in law. He submitted that the Larger Bench in the case of CCE v. Kashmir Conductors [1997 (96) E.L.T. 257 (Tri.)] has laid down the time limit for filing the refund claim and that they have held that the time limit for refund claim filed on the basis of notifications granting exemptions is based on total value/quantity of clearance during a particular financial year to commence from the date of payment of duty and not from the date of closing of that financial year. On a speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice for the month in which they had paid less wherein demand for Rs. 1,00,322/- was raised for short payment. The question is as to whether payment made in excess during January - February 1996 can be adjusted towards the less demand made for November 1995. Likewise in appeal E/1859/99, they had short paid the amount adopting 5% as against rate of duty of 10% and hence a demand was raised for an amount of Rs. 11,650/-. Even here they contended that they had paid excess of 10% and 15% for subsequent months and therefore, the amounts could be adjusted. Both the authorities have rejected their plea and stated that such adjustment cannot be done for excess payment. The Tribunal in the case of Tata Oil Mills Co. Ltd. (supra) after notin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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