2007 (4) TMI 245 - AT - Central Excise

Tribunal allows appeal, directs adjustment of Central Excise duty overpayment towards education cess

SOUTH ASIAN PETROCHEM LTD. Versus CC. (AIRPORT & ADMN.), KOLKATA

The Tribunal allowed the appeal, setting aside the impugned order and directing the jurisdictional Commissioner to adjust the short payment of Central ... Jurisdiction to order adjustment in payments - appellants have short paid Central Excise duty and they have made excess payment towards education cess - appellants confirms that the jurisdictional Commissioner is in-charge of the appellants’ export oriented unit, and both Customs & Excise work is handled by the same Commissioner – held that, same authority, who is in-charge of both the Excise & Customs work relating to the appellants’ Unit, can order an adjustment in the payments Issues:- Central Excise duty short payment- Excess payment towards education cess- Jurisdictional Commissioner's decision on payment adjustment- Appeal against impugned order- Refund claim considerationCentral Excise Duty Short Payment:The appellants were found to have short paid Central Excise duty amounting to Rs. 78,51,694. This fact was not contested in the impugned order. The jurisdictional Commissioner expressed doubts about adjusting the short payment against the excess payment made by the appellants. However, it was noted that the same Commissioner oversaw both Customs and Excise matters for the appellants' unit. The Tribunal found it reasonable for the Commissioner to order an adjustment since the payments were made to the Central Government under different heads due to confusion regarding educational cess calculation, which was later clarified by the Board.Excess Payment Towards Education Cess:The appellants had also made an excess payment of Rs. 1,03,52,860 towards education cess. This excess payment was acknowledged, and the Tribunal considered it in conjunction with the short payment of Central Excise duty. The Tribunal highlighted the lack of clarity in educational cess calculation that led to the erroneous payments by the appellants.Jurisdictional Commissioner's Decision on Payment Adjustment:After evaluating the facts and circumstances, the Tribunal directed the jurisdictional Commissioner to adjust the short payment against the excess payment made by the appellants. The Tribunal emphasized that since the Commissioner handled both Customs and Excise matters for the appellants' unit, there was no impediment to ordering such an adjustment. The Tribunal deemed it appropriate for the Commissioner to facilitate the adjustment given the nature of the payments and the subsequent clarification by the Board on educational cess calculation.Appeal Against Impugned Order:The impugned order, which raised concerns about the adjustment of payments, was set aside by the Tribunal. The appeal was allowed, and the Tribunal directed the Commissioner to make the necessary adjustments between the short payment and excess payment. Additionally, the Tribunal disposed of the stay petition in connection with the appeal.Refund Claim Consideration:Regarding the balance amount after the adjustment, the Tribunal instructed that the appellants could file a refund claim as per the legal requirements. The Tribunal indicated that if the appellants opted for a refund claim, the balance amount could be considered for refund. This aspect underscored the Tribunal's decision to address the payment discrepancies and provide a pathway for potential refund claims by the appellants.