9911796707
TMI Blog2001 (11) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... hort/excess payment. The contention of the adjudicating authority that the duty paid excess on certain consignments should have been claimed as refund and not adjustable against the duty paid short, is not sustainable. If this was so the final assessment order should have been issued consignment wise showing the duty short paid or paid in excess which is not the case here. Since no short or excess payment has been pointed by the assessing officer, there is no case of demand as has been done by the adjudicating authority. Besides, this view is further reinforced by the ratio of decisions of Tribunal, supra. In view of the above decisions and findings the impugned order is set aside and the appeal is allowed. 2. The facts of the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party but to make sure and safeguard the claim of Revenue. 4. In the SCN in Para 4 it has been stated that in order to finalise the provisionally assessed RT-12 s the noticees were asked to furnish the details of sale proceedings of yarn. The noticee furnished the details from which it appeared that the noticee as adjusted Rs. 16,85,247/- towards excess amount of duty recovered by them on ultimate sales of yarn during March, 1994 to September, 1996 and have paid balance amount of duties. It was alleged that since it was suo motu refund taken by the assessee leading to short payment of Central Excise duties of Rs. 16,85,247/- which became recoverable in terms of Section 11A of the Act. The Assistant Commissioner in the order-in-original c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount and short or excess payment has been pointed out, therefore, there was no case of demand against the assessee. He submits that in view of these findings of the Commissioner (Appeals) and there was no warrant for opposing the impugned order. He, therefore prays that the appeal may be rejected. 7. We have heard the rival submissions. We note that the Assistant Commissioner had held that the provisional assessments were finalised. We note that this aspect was not agitated by an appeal or cross-objection filed by the Revenue. Further, we note that in the appeal memo, the question of finalisation of provisional assessments has not been clearly made it was only argued by the ld. DR. If there was violation of any Rules, the penalty should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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