2017 (11) TMI 1436 - AT - Central Excise

Valuation - abatement - provisional assessment - adjustment of excess paid duty with short paid duty - Held that - the period is prior to 25.6.1999 when proviso to Rule 9B of erstwhile Central Excise Rules, 1944 was added - In the decision of Panasonic Battery India Co. 2013 (9) TMI 652 - CESTAT AHMEDABAD , the Larger Bench had analyzed the issues and held the issue in favor of the assessee. The excess/paid has to be adjusted towards short-payment of duty at the time of finalization of provisional assessment. Bar of unjust enrichment under Rule 9B(5) of Central Excise Rules, 1944 is not applicable to finalization of assessment for the period prior to 25.6.1999, even if the assessment is finalized after 25.6.1999. Demand withheld - appeal allowed - decided in favor of appellant.

Summary

Issues:
Provisional assessment finalization, excess duty payment, short payment of duty, adjustment of excess duty, applicability of Rule 9B of Central Excise Rules, unjust enrichment, appeal against confirmed demand.

Analysis:

1. The appellants, engaged in manufacturing cosmetics and toilet preparations, filed Price Lists under Rule 173C of Central Excise Rules, 1944 for clearance of commodities. The assessments for the period from July 1985 to March 1990 were made provisional due to disputes regarding various abatements claimed by the appellants. A show cause notice was issued to deny the abatements, leading to provisional assessments under Rule 9(b) of the Central Excise Rules, 1944. The appellants repeatedly requested finalization of assessments and adjustment of excess duty towards differential duty payable but were denied by the original authority, resulting in the appeal.

2. The appellant's counsel argued that the provisional assessment was finalized, showing excess duty payment on certain abatement heads and short payment of duty. The issue of adjusting excess duty towards short payment was supported by precedents like CCE Vs. Panasonic Battery India Co. and Toyota Kirloskar Auto Parts Vs. CCE. The appellant sought adjustment based on these precedents.

3. The Assistant Commissioner (AR) reiterated the findings of the impugned order, supporting the denial of adjustment of excess duty towards short payment.

4. The Tribunal considered the arguments from both sides.

5. The Tribunal noted that the period in question was before the addition of the proviso to Rule 9B of the Central Excise Rules, 1944. Referring to the decision in CCE Vs. Panasonic Battery India Co., the Tribunal held that the excess duty paid should be adjusted towards short payment at the time of finalizing provisional assessments. The Tribunal clarified that the bar of unjust enrichment under Rule 9B(5) does not apply to assessments finalized for periods before 25.6.1999, even if the finalization occurs after that date.

6. Consequently, the Tribunal found the demand unsustainable, set aside the impugned order, and allowed the appeal with any consequential relief.

This comprehensive analysis of the judgment covers the issues of provisional assessment finalization, adjustment of excess duty, application of relevant rules, and the Tribunal's decision based on legal precedents and interpretations of the law.