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TMI Blog2014 (2) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 25-6-1999 the adjudicating authority could adjust the excess payments made at the time of provisional assessment towards short-payments arising at the time of final assessment - Decided against Revenue. - E/2941/2004 and E/CO/596/2004 - Final Order Nos. A/938-939/2013-WZB/C-II(EB) - Dated:- 17-10-2013 - Shri P.R. Chandrasekharan and Anil Choudhary, JJ. Shri V.R. Kulkarni, Dy. Commissioner (AR), for the Appellant. Shri Gajendra Jain, Advocate, for the Respondent. ORDER This is an appeal filed by the Revenue against Order-in-Appeal No. CEX-XI/JMJ/273/916/ NSK/APL/2004, dated 28-6-2004 passed by the Commissioner of Central Excise Customs (Appeals), Nashik. 2. The facts relevant to the case are as follows : 2.1 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly ground urged in the appeal memorandum is that, if there is an excess payment made by the assessee, then the procedure prescribed under Section 11B of the Central Excise Act, 1944 should have been followed and such excess payment should not have been adjusted against short-payments and, therefore the assessing officer committed an error. Since the appellate authority did not consider this aspect, the impugned order has to be set aside and the Revenue s appeal allowed. 3.1 The learned Additional Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum. However, he submitted that there was a provision for adjustment of excess payments towards short-payments under Rule 9B of the Central Excise Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995, dated 24-6-1995. Therefore, the adjudicating authority has correctly adjusted the excess payments made by the assessee towards the short-payments which were due from them. The said Rule was subsequently amended by adding a proviso which stated that : Provided that, if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of section 11B of the Act. 5.1 This provision has been incorporated in the statute vide Notification No. 45/99-C.E., dated 25-6-1999. Therefore, prior to 25-6-1999 the adjudicating authority could adjust the excess payments made at the time of provisional assessment towards short-payments arising at the time of final ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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