TaxTMI 
TaxTMI 
2012 (12) TMI 144
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.... Commissioner and executing the required bond and furnishing the required bank guarantee. Accordingly, during the financial year 2003-04, the goods were assessed provisionally and cleared to CEAT on payment of duty. At the end of the financial year, the assessee collected the certificate of cost of production issued by the Cost Accountant of CEAT and, on the basis thereof, estimated the final assessable value of the goods. Statements showing the manner of calculation of such assessable value and the particulars of the differential duty payable by, or refundable to, them were submitted by the assessee to the assessing authority. On the basis of such statements, the assessee by letters dated 15.12.2004 and 23.12.2004 claimed refund of duty of Rs.2,33,923/- after adjusting short payments against excess payments. The Assistant Commissioner, on scrutiny of the statements furnished by the assessee, found that an amount of Rs.2,02,859/- had been short-paid during the period from September 2003 to March 2004 and an amount of Rs.3,56,761/- had been paid in excess. He issued a show-cause notice dated 7.1.2005 to the assessee seeking to recover the short-paid duty of Rs.2,02,859/- with intere....
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....by the Cost Accountant of CEAT. On a scrutiny of the statements furnished by the assessee, the Assistant Commissioner found excess payment of duty of Rs.1,21,805/- by the assessee in respect of tubes of certain dimensions and short-payment of duty of Rs.5,70,971/- by them in respect of other tubes cleared to CEAT in 2004-05. The Assistant Commissioner further noted that the assessee had, in their letter dated 17.10.2005, adjusted the excess payment against short-payment and had indicated the net short-payment of duty for 2004-05. The assessing authority thus finalized the provisional assessments and by order No.28/2005 dated 31.10.2005 (a) demanded differential duty of Rs.5,70,971/- for 2004-05 with interest thereon under Rule 7 ibid, (b) rejected the claim for adjustment of excess payment against short-payment for the said period and (c) ordered that the refundable amount of Rs.1,21,805/- be credited to Consumer Welfare Fund. In an appeal filed by the assessee, the Commissioner (Appeals) vide order-in-appeal No.13/2006 dated 10.4.2006 upheld the above order of the Assistant Commissioner. Hence the present appeal No. E/890/2006 of the assessee. 3. Both the appeals were he....
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....rdingly any excess duty had to be adjusted through debit and credit notes from time to time. It was further claimed that such adjustments were made between the assessee and CEAT and therefore the assessee should be held to have borne the incidence of duty paid in excess. In this context, the learned counsel relied on two High Court judgments viz. Union of India vs. A.K. Spintex Ltd.: 2009 (234) ELT 41 (Raj.) and CCE, Bangalore-I vs. Om Pharmaceuticals Ltd.: 2011 (268) E.L.T. 79 (Kar.). According to the counsel, the assessee s claim for refund of the excess duty paid by them was not hit by the bar of unjust enrichment in view of the cited judgments. Therefore, the learned counsel claimed the benefit of the larger Bench decision. It was urged that the claim for adjustment of excess payment of duty against short-payment of duty be allowed. It was also pointed out that, in a similar case of the appellant s sister concern, the Commissioner (Appeals) vide Order-in-Appeal No.149/2004 (H-IV) dated 29.11.2004 allowed such adjustment. 6. The learned SDR objected to such adjustment being allowed in one go for the entire financial year. He contended that an excess payment of duty for....
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....procedure of provisional assessment of duty by the assessee and its finalisation by the proper officer of Central Excise, says that any amount payable to the Central Government consequent to the final assessment shall be paid with interest at the prescribed rate. The interest is required to be paid from the first day of the month succeeding the month for which such amount of duty is determined, till the date of payment of duty. Rule 7 also provides for refund of excess duty to the assessee consequent to final assessment, with interest thereon at the prescribed rate from the first day of the month succeeding the month for which such refund is determined, till the date of refund. These provisions contained in sub-rules (4) and (5) of Rule 7 clearly indicate that the final assessments are required to be made monthwise. Rule 8 which deals with the manner of payment of duty provides that the duty on the goods removed from the factory/warehouse during a month shall be paid by the fifth day of the following month. Rule 12 requires every assessee to submit a monthly return of production and removal of goods. From these provisions, it is eloquently clear that an assessee has to file return ....
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....n monthly basis and finalisation of provisional assessments on the same basis, any adjustment of excess payment of duty against short-payment of duty cannot be claimed otherwise than on monthly basis. 11. In the impugned orders, the learned Commissioner (Appeals) noted inter alia thus: In any case, the provisional assessment has to be finalized in respect of each RT-12 return filed in a particular month (vide para 11 of each of the impugned orders). This finding of the appellate authority, which is in accord with the provisions of Rule 7 ibid, has not been challenged by the appellant. Therefore the appellant is precluded from claiming total adjustment in one go for the entire financial year. They can claim adjustment only within the period covered by each return. We must hasten to add that even such adjustment cannot be allowed unless the assessee succeeds in surmounting the bar of unjust enrichment. 12. The exercise of adjusting excess duty against shortage of duty has necessarily to be undertaken by the original authority. Needless to say that, before that authority, the assessee has to discharge the burden cast on them by Section 12B of the Central Excise Act....