2016 (11) TMI 14

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....5. They sell their goods substantially to the Department of Telecommunication (DoT) which subsequently was spun into BSNL. The contracts entered into by the appellant with the DoT/BSNL provided for variation in the price depending on certain factors and the price of the goods was subsequently finalised after clearances of the goods. The assessments of the goods were made provisionally under the then Rule 9B of the Central Excise rules. The disputes covered by the present two appeals arose at the time of finalisation of the provisional assessments. The two orders which are the subject matter of the present appeals relate to finalisation of provisional assessments for different periods of time, but involve similar issues. The disputes may be ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....h the process of refund, under Section 11B of Central Excise Act, 1944. Even in the case of duty excess paid, it is seen that the duty burden has already been passed on to the customers and no proof contrary to this has been placed on record or indicated in the assessee s final excise duty statement. Further, it is observed that the assessee has taken refund by suo motto by adjusting the excess duty paid towards the duty short paid, for the entire year. Duty short paid cannot be adjusted towards excess payment  refund has to be claimed proving that incidence of duty has not been passed on. 2.1 As against the confirmation of differential duties by disallowing adjustments as above, by the original adjudicating authorities, the assessee ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d decided by the Larger Bench of CESTAT in the case of Excel Rubber Ltd. vs. CCE, Hyderabad: 2011 (268) E.L.T. 419 (Tri.-LB). The Larger Bench in this case has decided that before grant of such adjustments, the authority will have to ascertain whether such excess amount is to be actually refunded to the assessee or is liable to be credited to the consumer benefit fund by examining the same with reference to the principle of unjust enrichment. Further, the Larger Bench held that the burden of proof in this regard would lie upon the assessee. 5.1 Learned DR further submitted that the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. vs. CCE, Bangalore: 2012 (276) E.L.T. 332 (Kar.) has allowed such adjustmen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..... (supra). 7. We have heard both sides and gone through the records in detail. We find that the decision cited by the learned advocate in the respondent s own case dealing with the finalisation of provisional assessments for a different period, needs to be followed for the periods before us. The Tribunal held as follows in the cited case: "4. After hearing both the sides, we find that the short issue required to be decided is as to whether the duty excess paid by the assessee during the period of provisional assessment is required to be adjusted towards he duty short-paid by them, upon finalization of such provisional assessment. Learned counsel for the respondent has relied upon various decisions of the Tribunal laying down that such ad....