2016 (3) TMI 9 - AT - Central Excise

Adjustment of duty excess paid against the duty short-paid - 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? - Held that - Reference can be made to latest decision in the case of Hindustan Zinc Ltd. vs. Commissioner of Central Excise, Jaipur 2015 (11) TMI 953 - CESTAT NEW DELHI (LB) wherein there was originally difference of opinion between the two Members of the Bench and the issue was decided by the third Member. It was held that the assessee is entitled for adjustment of excess paid duty with the short-paid duty during the period of provisional assessments, upon finalization of the assessments. Inasmuch as the issue is decided by the majority decision of the Tribunal in favour of the assessee

Summary

Issues: Duty excess paid adjustment against duty short-paid, validity of Commissioner's order, legality of suo motto refunds, requirement of proof for duty burden passed on to customers.

Analysis:
1. Duty Excess Paid Adjustment: The main issue in this case revolved around whether the duty excess paid by the assessee during the provisional assessment period should be adjusted against the duty short-paid upon finalization of the assessment. The Tribunal referred to various decisions, including the case of Hindustan Zinc Ltd. vs. Commissioner of Central Excise, Jaipur, where it was held that such adjustment is permissible. The Tribunal upheld the majority decision in favor of the assessee, concluding that the adjustment is justified. Therefore, the Revenue's appeal on this ground was rejected.

2. Validity of Commissioner's Order: The Revenue challenged the Commissioner's order, arguing that the suo motto refunds taken by the assessee were not in order. They contended that duty excess paid should go through the refund process under Section 11B of the Central Excise Act, 1944. The Tribunal, however, found no merit in the Revenue's appeal, as the adjustment of excess duty with short-paid duty was deemed appropriate based on legal precedents.

3. Legality of Suo Motto Refunds: Another ground of appeal by the Revenue was related to the legality of the suo motto refunds taken by the assessee. The Revenue argued that the refunds taken by the assessee on account of credit notes were not supported by sufficient evidence and should have been included in the selling price of the goods. The Tribunal did not find any infirmity in the Commissioner's decision to allow the adjustment of excess duty paid against short-paid duty, thereby rejecting this ground of appeal as well.

4. Requirement of Proof for Duty Burden: The Revenue raised concerns about the duty burden being passed on to customers without proper evidence. They contended that no proof contrary to this assertion was presented by the assessee. However, the Tribunal did not find any indication or evidence to support the Revenue's claim, and hence, this ground of appeal was not upheld.

In conclusion, the Tribunal upheld the Commissioner's decision to allow the adjustment of duty excess paid by the assessee against duty short-paid, based on legal precedents and majority decisions of the Tribunal. The Revenue's appeal was rejected on all grounds, and the order was pronounced in open court.