2014 (3) TMI 484 - AT - Central Excise

Prayer of adjustment of excess paid duty with short payment - Revenue contended that manufacturer has not complied with Rule 9B as provisional assessment and therefore he should have filed Refund claim u/s 11B - revenue denied the adustment - Held that - On perusal of the records and the impugned order, we find that the Assistant Commissioner, Tuticorin by letter dated 15.4.1999 ordered for provisional assessment and also directed to execute a bond as required under Rule 9B of the Central Excise Rules, 1944. The appellant had not executed the bond as required under the said Rule and therefore there was no provisional assessment. We agree with the finding of the Commissioner (Appeals) that the excess amount of duty paid on higher assessable value would be refunded in accordance with Section 11B of the said Act - Decided against assessee.

Summary

Issues:
- Demand of duty on lower assessable value
- Refund of excess duty paid on higher assessable value
- Compliance with Rule 9B of Central Excise Rules, 1944
- Adjustment of refund and demand

Analysis:
The judgment dealt with multiple appeals arising from a common order regarding the demand of duty on Polyester Yarn and Polyviscose Yarn by the appellants through consignment agents. The original authority proposed duty demands for various periods due to alleged lower assessable values at the time of clearance. The Commissioner (Appeals) upheld the duty demand but set aside the penalty. The appellant argued that they cleared goods to consignment agents under provisional prices, paying excess duty on higher assessable values, seeking refund. The appellant contended that the excess duty paid should offset the duty demand on lower assessable values. The appellant requested provisional assessment under Rule 9B of the Central Excise Rules, 1944, which was not granted. The appellant claimed the original authority used different standards for refunds and demands, which was legally impermissible. The Revenue argued against the appellant's claims, stating non-compliance with Rule 9B and that excess duty refunds were only permissible under Section 11B of the Central Excise Act, 1944, not for short-payment under Section 11A.

The Tribunal found that the appellant did not contest the duty short-paid during consignment agent sales but sought adjustment for excess duty paid on higher assessable values. It was noted that the Assistant Commissioner had ordered provisional assessment under Rule 9B but the appellant failed to comply by executing the required bond, thus no provisional assessment took place. The Tribunal concurred with the Commissioner (Appeals) that excess duty paid on higher assessable values should be refunded under Section 11B of the Act. Consequently, the Tribunal upheld the Commissioner's decision, dismissing all appeals by the appellants and disposing of the Revenue's cross-objection. The judgment was pronounced on 9.7.2013.