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TMI Blog2019 (6) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... y who has borne the duties and it cannot be retained by the exchequer. In order to ensure that there is a proper compliance with the settled law on sanction, as well as adjustment, of refund, the impugned order is set aside and matter remanded back to the adjudicating authority to decide the claim afresh - appeal allowed by way of remand. - Excise Appeal No. 2123 of 2010 - FINAL ORDER No: A/86138/2019 - Dated:- 20-6-2019 - MR C J MATHEW, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate for the appellant Shri N.N. Prabhudesai, Supdt.(Authorised Representative) for the respondent ORDER This appeal lies against order-in-appeal no. PKS/311/BEL/2010 dated 21st September 2010 of Commissioner of Central Excise (Appeals), Mumbai III. Briefly appellants had claimed refund of ₹ 5,55,856/- for the period from April 2002 to December 2003, ₹ 10,29,637/- for the period from 1st January 2004 to 30th June 2005, ₹ 10,79,333/- for the period from July 2005 to March 2006 and ₹ 65,04,529/- for the period from July 2005 to March 2006. The rejection of refund claims of ₹ 10,79, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Belapur [2018 (12) TMI 1474-CESTAT-MUMBAI]. 3. According to Learned Authorised Representative, there was no request from the appellant herein for subjecting the goods to provisional assessment and that it was the first appellate authority who directed that the assessment should be deemed to be provisional. He also contended that insofar as the refunds are concerned, the bar of unjust enrichment had not been crossed. Placing reliance on the decision of My Car Pune Pvt Ltd v. Commissioner of Central Excise, Pune I [2015-TIOL-412-CESTAT-MUM] , he contends that none of the decisions cited by Learned Counsel would advance the case for adjustment of excess payments against liabilities arising from short payment without the excess paid having to undergo the test of unjust enrichment. According to him, at no stage in the proceedings, had it been asserted on behalf of the appellant that the incidence of duty had indeed been borne by them. 4. The issue in this dispute pertains to the quantification of, and the manner in which, the duty liability arising from adoption of the transaction value for clearance of lubricating oil that are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. If after taking into consideration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest. 9. In the instant case, admittedly for certain items the Adjudicating Authority has held the short fall in payment of duty after the final assessment order as ₹ 10,63,417/-. In respect of other items, the assessee has paid ₹ 1,77,20,157/- in excess. But before imposing interest, the authority should have deducted the short fall in the excess payment made. If there is no short fall in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty on provisional basis at such raw or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of Central Excise of the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1): Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009-10, 2011-12 and April, 2012 to June 2012. The appellant has sought to adjust excess payment with the short payments. This is not permissible. The excess payments have to be claimed by way of refund and short payments have to be made good by the appellant to the department as principles of unjust enrichment might be involved in any refund claim. Nevertheless, the appellant has to be given due credit for the payments already made. Inasmuch as this has not been done, the mater has to go back to the Adjudicating Authority for recomputation of the correct service tax demand. 5.2 Similarly, in respect of demand under the taxable service category of Authorised Service Station', here also we find that the appellant has discharged part of the service tax liability through Cenvat Credit account and part in cash. However, due credit for these payments have not been given by the Adjudicating Authority for the reason that the payments through Cenvat Credit was not correctly reflected in the ST-3 returns filed by the appellant, even though for the period of the return, the total amount of Cenvat Credit utilised in payment of service tax was reflected. If the appellant had de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. were not furnished before the Adjudicating Authority at the time of adjudication. Therefore, the appellant should be given a fair opportunity of producing these documents to satisfy the Adjudicating Authority with respect to their contention that these are nothing but trade discounts. Alternately, the department can also find out from the excise authorities in charge of Maruti Suzuki Ltd. as to how the amount given by way of incentives has been treated for excise purposes. If the amount is already included in the value of cars sold and duty liability discharged, the question of subjecting the same under Business Auxiliary Service would not arise. If no excise liability has been discharged, then also it can be verified that whether the incentive given has been treated as trade discount for excise purposes. If it is so, then the question of demanding service tax under Business Auxiliary Service would not arise at all. These factors which are relevant for consideration have not been taken into account while passing the impugned order. Therefore, in the interest of justice, the matter has to go back to the Adjudicating Authority for considering the various contentions raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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