9911796707
TMI Blog1999 (2) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... to and therefore the demand for Rs. 35,26,801/- has been confirmed. 2. Heard Learned Shri S.S. Thakur, Vice President, Excise of the appellant who submitted that briefly the issue concerns assessment of duty on Add-on Abrasive Fabrics. He concedes that the same would be assessable under Chapter 59 attracting a Basic Excise Duty only at the rate of 15% ad valorem. He submitted that these goods for the period in question were wrongly cleared on payment of duty as Cotton Fabrics under Chapter 52 and on payment of additional duty of Excise (GSI) at the rate of 10% ad valorem. This amount of additional duty came to Rs. 23,51,200/- and in this Appeal it is their prayer that the same should be adjusted against the confirmed amount of Rs. 35,26, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 - Can it be a duty under the Act of 1978 also? It was contended that Rule 2(v) of the Central Excise Rules, 1944 defines duty. It means duty payable under Section 3 of the Act of 1944. Imposition of additional duty is as per the provisions of the Act of 1978. Therefore it is submitted that additional duty under the provisions of the Act of 1978 does not become a levy under the provisions of the Act of 1944. Both are separate duty. Additional duty may stand or fall on its own strength. In short it was submitted that having regard to the definition of `duty occurring in Rule 2(v), duty of excise leviable under Section 3 of the Act of 1944 is separate from the additional duty of excise leviable under Section 3 of the Act of 1978. Such add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that by Order-in-Original No. 6/92 dated 2-4-1992 the Collector of Central Excise, Madurai had allowed such an adjustment between the basic excise duty and the additional excise duty. Though the Department has filed an appeal against the said Order-in-Original which is to be considered in E/293/93 the grounds of appeal do not challenge such adjustment but are on a different issue, that is an issue of condonation of non-filing of declaration under Rule 57G for Modvat purposes. Therefore the said Order-in-Original has acquired finality in this respect in their own case. Shri Thakur further submits that a perusal of Rule 57F(12) shows that as per Rule 57F(12) there is now prescribed a fluidity in the manner in which Modvat credit obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d towards adjustment to liability against the other on a request being made by the assessee, so that the assessee necessarily does not have to resort to the procedure of obtaining refund on one hand and paying exactly the same amount again to Government on the other hand. We find that the quantum sought for adjustment, that is Rs. 23,51,200/- is not disputed by either side. It is also not disputed that the assessment of the fabrics would correctly attract duty under Chapter 59 as Basic Excise Duty at 15% ad valorem. It is also not disputed that the differential amount of Rs. 11,75,601/- has already been paid under the head Basic Excise duty. The only issue under dispute is whether the amount of Rs. 23,51,200/- erroneously paid by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an adjustment between these two kinds of Excise duties, then it would be too harsh to not allow the prayer of the appellants merely on the ground that there are two duty heads of accounts for procedural purposes. 6. In view of the aforesaid findings, and also keeping in view that by an earlier Order-in-Original the Collector of Central Excise had allowed these very appellants such an adjustment which was not challenged by Revenue in appeal, we find merit in the said appeal. We therefore set aside the Order-in-Original impugned and allow the request of the appellants for the amount of Rs. 23,51,200/- paid as Additional Duty of Excise (GSI) to be adjusted towards the payment of Basic Excise Duty for the clearances of these fabrics under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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