TaxTMI 
TaxTMI 
2015 (10) TMI 1032
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....nt of excess payment of duty against the short payment of duty. The appellant herein had sought provisional assessment of the goods cleared from their factory premises for the period April 2002 to March 2003. It was noticed on finalization of provisional assessment, that the appellant is entitled for refund of an amount after adjusting the excess payment made by the appellant during the relevant period in question. The adjudicating authority held that such adjustment is to be done and ordered for refund of an amount which paid in excess. Aggrieved by such an order, Revenue preferred an appeal before the first appellate authority. The first appellate authority after following due process of law reversed the decision taken by the adjudicating....
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....has to go through the hurdle of unjust enrichment even if it is arising out of finalization of assessment. He would also submit that the decision of this Bench in the case of My Car Pune Pvt. Ltd. v. CCE - Application No.ST/S/92989/14 - Mum is also on the same issue and the Bench has held that excess payment cannot be adjusted against short payment. 7. I have considered the submissions made by both sides and perused the records. 8. The only issue involved in this case is whether an adjustment is possible against the short payment of duty vis-a-vis excess payment made by the assessee during the relevant period when the assessments were provisional and subsequently finalized. It is undisputed that the appellant had sought provisional as....
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....ll in the duty payable at the end of assessment. Thereafter, a final assessment order is to be passed. If after the final assessment; if it is found that there is a short fall in payment of duty, sub-rule (4) provides for payment of interest on such short payment of duty. Whereas sub-rule (5) provides for refund of excess duty paid. 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is de....
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....;ble Karnataka High Court is binding on the Tribunal. In view of this, there is no illegality or impropriety in Commissioner (Appeals)'s order dt 5/8/05, The Revenue's appeal No. 3238 of 2005 is accordingly dismissed. The C.O. also stands disposed of." 8.4 As against the above referred judgements and ratio, Revenue placed reliance on the decision of Larger Bench of the Tribunal in the case of Excel Rubber Ltd. (supra) and My Car Pune Pvt. Ltd. (supra) will not carry the case of revenue any further. I find that in the case Excel Rubber Ltd., the Larger Bench, in para 50, has specifically recorded that "excess amount can certainly be adjusted towards any other duty liability of such assessee under the Excisee Act, 1944 and Rules ma....