9911796707
TMI Blog2013 (5) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. 2. Brief facts of the case are that the respondent imported crude oil during 1997 to 2004. During this period, the respondent filed 429 Bills of Entry and all the assessment were made provisionally. At the time of finalization of assessment, the adjudicating authority found that in some cases duty is payable by the respondent and in some cases they have paid excess duty. The adjudicating authority demanded duty where duty is short paid along with interest. The said order was challenged by the respondent before the Commissioner (Appeals) who relied on the decision of the Tribunal in the case of Apar Industries Ltd. v. Commissioner of Customs - 2008-TIOL-173-CESTAT-MUM allowed the adjustment of duty demand against the excess payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses and shortages) of crude oil received in the refinery as per Intake certificate for given calendar month. The excess quantities were considered for recovery of differential cess from the respondent and the shortages were ignored. If the assessee was liable to pay differential cess on the excess quantities of crude oil in terms of Section 15(2) of the Oil Industry (Development) Act, 1974, they could claim refund of differential cess in respect of the shortages. Therefore, the assessee's claim for adjustment was liable to be considered by the proper officer of Central Excise at the time of finalization of provisional assessment of the relevant monthly return. Of course, as per a Larger Bench decision of this Tribunal in the case of Excel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 (268) E.L.T. 419 (Tri.-LB). 4.2 We have also examined the respondent's own case as reported in 2013 (291) E.L.T. 230 (Tri.-Mum.) wherein the Tribunal held that excess payment of duty found in one set of Bills of Entry cannot be adjusted against short payment for another set. The case law cannot be relied upon in the present case as in that case the assessee did not file refund claim. Therefore, the said decision is not applicable to the facts of this case. 5. In view of the above observation, we are of the view that the matter is to be remanded back to the adjudicating authority to ascertain whether the respondents are required to pay any duty after adjusting the excess duty paid by them against the duty demanded from them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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