2011 (9) TMI 178 - AT - Central Excise

Demand - claimed turn over tax provisionally at the time of clearances from the factory which was in excess of what was incurred by assessee as the excess value - Commissioner (Appeals) has rightly held that in the case of finalization of provisional assessment, the appellant was directed to prefer a claim for refund in terms of Section 11B of the Central Excise Act, 1944 and when the refund claim was processed a discrepancy was noticed in the turnover tax element - Hence a show-cause notice was issued and the demand raised against the appellant - Therefore, there is no merit in the challenge by the appellants and the appellants had not given any satisfactory reason for the turn over tax claimed by them in excess - Decided against the assessee.

Summary

Issues:
1. Additional ground of demand limitation
2. Short-payment of duty due to excess turnover tax claim
3. Power of Superintendent to revise orders
4. Validity of adjudication order by Assistant Commissioner

Analysis:
1. The application to raise an additional ground that the demand is time-barred was dismissed as withdrawn.
2. The appellants, engaged in pesticide manufacturing, had provisional assessments finalized by the Assistant Commissioner, leading to a discrepancy in turnover tax claimed and incurred, resulting in a duty short-payment of Rs.2,17,868/-. The show-cause notice for recovery of the short-paid amount was confirmed by the Deputy Commissioner and upheld by the lower appellate authority. The appeal was filed challenging this decision.
3. The Commissioner (Appeals) correctly held that in cases of finalization of provisional assessments, the appellant must file a refund claim under Section 11B of the Central Excise Act, 1944. A discrepancy in the turnover tax element led to the issuance of a show-cause notice and subsequent demand against the appellant. The challenge regarding the power of the Superintendent to revise orders and the Assistant Commissioner's adjudication was dismissed, as the appellants failed to provide a satisfactory reason for the excess turnover tax claimed.
4. The lower appellate authority's decision was upheld by the Tribunal, as there was no reason to interfere with the impugned order. The appeal was dismissed accordingly.