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TMI Blog2024 (6) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessees are the manufacturers of spring leaves/spring leaves assembly and having depots at Madurai, Bangalore, Calicut, and Vijayawada, through which sales have been made, in addition to the factory gate sales, to its customers. They had resorted to provisional assessment for the years under dispute, on the ground that the actual quantum of abatement were not known at the time of clearance of excisable goods. In the proposal for finalisation of provisional assessment, the assessee appears to have claimed various abatement viz., cash discount, trade discount, annual trade discount, and secondary freight for sales made from their factory. Consequent upon the finalisation of provisional assessments for the years under challenge, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, we find that the first appellate authority has observed that for the year 2008-09, as against claim of Rs.14,38,174/- the original authority had sanctioned Rs.86,129/- and for the other year a refund of Rs.6,96,147/- was allowed and the rejection of the balance claim was pertaining to the excess duty paid in the respect of depot sales. It is the case of the Revenue that though Rule 7 of CER, 2002 enabled a taxpayer to claim refund of any amount paid in excess during provisional assessment, but however, the same is not absolute but subject to the principles of unjust enrichment. 8. In this regard, we find that the assumption of the learned Advocate to be correct inasmuch as, an identical issue has been decided in favour of the taxpayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat other than the issue of adjustment of short payment against excess payment involved in these appeals, additional three issues arise. One such issue is whether cost of freight incurred by the appellant post clearance shall be includible in the assessable value. He submits that such freight is not incurred for clearance of the goods. Therefore, that shall not form part of the assessable value. But the stand of Revenue is contrary. ***** ***** ****** 3.2 So far as the moot question of adjustment of excess payment of duty against short payment thereof is concerned, the ratio laid down in the judgment of the Hon'ble High Court of Karnataka (supra) read with mandate of Rule 7 of the Central Excise Rules, 2002, leads to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to compensate the revenue, interest is imposed. If that is to be kept in mind, in the instant case, when the assessee has paid a sum of Rs. 1,66,56,740/- excess duty which is entitled to claim refund, he cannot be taxed with payment of excess duty in the form of interest. The entire approach of the department is unreasonable, contrary to the scheme of the Act and negatives the principle underlying these provisions. Therefore, all the authorities were in error in levying and upholding the levy of interest." In view of the reasoning given by the Hon'ble High Court of Karnataka as above, all the appeals on the point of adjustability of excess payment of duty against shortage of duty paid is allowed and excess duty paid is refundable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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