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TMI Blog2015 (7) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... eerselvam, AC (AR) ORDER R. Periasami, Member (T) 1. The issue involved in both the appeals is common and hence they are taken up together for disposal. 2. The issue relates to finalization of provisional assessment and demanding differential duty without adjustment of excess payment made against while finalising the assessment in a particular year. 3. Heard both sides. The Ld. Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty can be considered provided there is no applicability of unjust enrichment. Further, he relied the case law in the case of Excel Rubber Ltd. v. CCE 2011-TIOL-536-CESTAT-DeL-LB. He also cites Hindustan Zinc Ltd. v. CCE Jaipur 2015-TIOL-44-CESTAT-Del which stands referred to a Third Member for final orders. 5. After hearing both sides, we find the issue relates to finalization of provisional as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant in law to deal with the consequence of each clearance on case to case basis to determine shortage and excess of payment of duty and consequence thereof. The ultimate duty liability of a relevant period is to be determined in final assessment taking into consideration entire clearance of that period in aggregate and if there arises excess payment of duty upon such finalization of making du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. The approach of the authorities in this regard is erroneous, unwarranted and unsupported by any statutory provision. If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. If that is to be kept in mind, in the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irloskar (supra), and this Tribunal's order (supra), we hold that appellants are eligible for adjustment of excess duty paid while finalizing the provisional assessment for the year 2005-06 and for the subsequent years question of unjust enrichment does not arise. Accordingly, the impugned orders are set aside and appeals are allowed with consequential relief. (Dictated and pronounced in open ..... X X X X Extracts X X X X X X X X Extracts X X X X
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