2019 (1) TMI 428 - AT - Central Excise

Adjustment of excise duty short paid with the excise duty paid in excess - finalization of provisional assessment - Held that - Issue decided in the case of Hindustan Zinc Ltd. Vs CCE Jaipur 2015 (11) TMI 953 - CESTAT NEW DELHI (LB) , where it was held that appellant is entitled for adjustment of excess paid duty with the short paid duty during the financial year 2006-07 - appeal dismissed - decided against Revenue.

Summary

Issues: Finalization of provisional assessment for lubricating oils, adjustment of excise duty short paid with excess duty paid, eligibility for refund of excess excise duty, applicability of unjust enrichment principles.

The judgment by the Appellate Tribunal CESTAT CHENNAI involved a dispute regarding the finalization of provisional assessment for lubricating oils cleared by the factory in bulk for repacking. The assessee had calculated the value of stock-transferred goods based on the cost of production under Rule 8 of the Valuation Rules, 2000. The assessment was provisional and finalized based on a CAS-4 certificate submitted annually. The Department challenged the assessee's adjustment of excise duty short paid with excess duty paid, leading to a demand for differential duty, interest, and penalties. The original authority confirmed the demand, denying the assessee a refund of excess excise duty. The Commissioner (Appeals) set aside the demand based on a Karnataka High Court judgment, but noted the assessee's acceptance of the refund denial. The Department appealed this decision.

During the hearing, the appellant relied on a Tribunal's Larger Bench decision stating that adjusting excess duty payment towards short payment is subject to unjust enrichment principles. The respondent-assessee argued that multiple Tribunal decisions, following the Karnataka High Court judgment, allowed such adjustments. The Tribunal noted the evolving jurisprudence on the issue.

The Tribunal found that the matter was settled by various decisions departing from the earlier Larger Bench ruling. It cited cases like CCE & ST Vadodara Vs Panasonic Battery India Co. Ltd. and Hindustan Zinc Ltd. Vs CCE Jaipur, which upheld the principle that total duty payable for all goods subject to provisional assessment should be considered. The Tribunal dismissed the Revenue's appeal, citing consistency with previous decisions and the absence of new grounds to deviate from established jurisprudence. Consequently, the appeal was dismissed, and the order was pronounced on December 31, 2018.