TaxTMI 
TaxTMI 
2019 (6) TMI 1018
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....appellate authority. Insofar as the refund claim of Rs. 10,29,637/- is concerned, it was disposed off and a further demand Rs. 8,46,150/- was confirmed by the original authority. These were also remanded by the first appellate authority on appeal. The original authority in fresh proceedings disposed off the seven refund claims; hence the demand for April 2002 to March 2006 and and the provisional assessment from April 2002 to June 2005, which were upheld by the first appellate authority, are now before us along with refund claims. 2. Appellant is in the business of manufacturing of 'lubricating oil for automotive as well as industrial use' and some being sold in containers of capacity of 20 litre/18 kgs, are subject to valuation under section 4A of Central Excise Act, 1944 while for the others of higher capacity assessment is in accordance with section 4 of Central Excise Act, 1944. At the time of clearance of 'lubricating oil,' the value was determined by deducting the VAT as well as the discount offered in the circulated schemes. The computation of the transaction value from 1st January 2004 to 30th June 2005 led to the discovery of excess amount of Rs. 10,29,637/- having been....
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.... be paid is not in dispute. On behalf of the appellant, it is contended the excess amount should be adjusted against the dues which was refused while finalising the provisional assessment. 5. The decision of the Tribunal in re Savita Chemicals Ltd held that '6. The short issue for determination is whether the duty short paid by the appellant amounting to Rs. 6,44,517/- during the period from July 2005 to March 2005 would be adjusted against the refund of Rs. 10,79,333/- claimed by the appellant for excess amount of duty paid. It is the contention of the Revenue that since the assessment was not provisional in accordance with Rule 7 of the Central Excise Rules, 2002, therefore, the appellant is precluded from adjusting the excess/shortage of duty against their liability. I find that the adjudicating authority has categorically held that the self assessment undertaken by the appellant was on provisional basis. Also, from the records, particularly the letter dated June 2001 and the ER-1 returns filed from time to time to the department, the appellant has categorically claimed that their assessment was provisional and no communication was addressed by the Revenue deny....
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....uthorities in this regard is erroneous, unwarranted and unsupported by any statutory provision. If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. If that is to be kept in mind, in the instant case, when the assessee has paid a sum of Rs. 1,66,56,740/- excess duty which is entitled to claim refund, he cannot be taxed with payment of excess duty in the form of interest. The entire approach of the department is unreasonable, contrary to the scheme of the Act and negatives the principle underlying these provisions. Therefore, all the authorities were in error in levying and upholding the levy of interest. In that view of the matter, we pass the following :' The Tribunal in re Raptakos Brett & Co Ltd, held that '5. On perusal of the records and the judgment in the appellant's own case as decided on 3.11.2014, we find that the issue is same and squarely covered in the appellant's favour. The reliance placed by the Tribunal in the case of Toyota Kirloskar Auto Parts (supra) is correct and we re....
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....tral Government by notification issued under Section 11AA or section 11AB of the Act from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof. (5) Where the assessee is entitled to a refund consequent to order for final assessment under sub-rule (3), subject to sub-rule (6), there shall be paid an interest on such refund at the rate specified by the Central Government by notification issued under Section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund: Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant if such amount is relatable to- (a) the duty of excise paid by the manufacture, if he had not passed on the incidence of such duty to any other person; or (b) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person." 6. In view of the foregoing in the facts and circumstances of this case, we fi....
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.... claims of the appellant in this regard and should have given them the benefit wherever the tax liability has been discharged. Inasmuch this exercise has not been undertaken by the Adjudicating Authority, the demand in its entirety cannot be sustained. According to the appellant, the net payment required to be made after making adjustment for excess payment towards short payment is Rs. 1,66,669/-. However, such adjustments are not permissible. Wherever there are short payments, they have to be made good by the appellant by paying through cash or Cenvat credit along with interest thereon and wherever there is excess payment the appellant has to make a claim for refund of the same in accordance with law. 5.3 The main and the last issue pertains to demand of service tax under the category of Business Auxiliary Service. As against the total demand of Rs. 1,84,53,425/- the appellant has conceded their liability on the income received under PDI charges which is Rs. 4,85,94,830/-. As regards miscellaneous income of Rs. 28,40,620/- the appellant's claim is that this income is derived from sale of scrap and nothing to do with any service rendered. This is a verifiable fact and ....