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TMI Blog2004 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... of Divya Enterprises Ltd. [ 2003 (3) TMI 108 - SC ORDER] . In the case of Divya Enterprises Ltd., Apex Court has clearly held that the demands raised on terry towelling fabric can be made adjusted for the duty paid on the towels. Therefore, in view of this Apex Court ruling, there cannot be any doubt with regard to the powers of the officer to make adjustments and raise the demands at the end of the financial year or at the time of issue of show cause notice. Similar view was expressed by the Apex Court in the case of Serai Kella Glass Works (P) Ltd. v. CCE [ 1997 (4) TMI 74 - SUPREME COURT] . It was also rendered in terms of Rule 173-I. Therefore, in terms of citations referred to, we are of the considered opinion that the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id at the rate of 5% instead of 10% as per slab rate for Rs. 50-75 lakhs as per Notfn. No. 1/93, dtd. 28-2-93 as amended and also disallowed Modvat credit of Rs. 1,248.55 under rule 57-I of CER availed on invalid invoice. The appellants are not contesting on the aspect of disallowance of Modvat credit of Rs. 1,248.55 under Rule 57-I of CER availed on invalid invoice. The appellants' ground of appeal is that they paid duty during the year 95-96 as exactly as per the defined norms. The exact cut off point was not derived by them because of their inclusion of non-payment of duty amount not separated in arriving at the total turnover summary and because of that only there was over-lapping of the slab rate, which was subsequently corrected. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping in the slab because of the fact that some non-payment duty amount were not separated while arriving at the exact cut-off point over the first slab. This overlapping was not intentional and was never with a view to pass on any undue advantage to its customers. However, the Commissioner has not agreed with their contention and held that short payment has to be dealt with separately from over payment, which has to be claimed for as refund. 2. We have heard ld. Advocate, Shri S. Raghu for the appellants and Shri L. Narasimha Murthy for the respondents. 3. Ld. Counsel submitted that for the same financial year where there is short payment under one slab and excess payment under another slab due to inadvertence then the Revenue suo motu can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 927 (Tri. - Del.)] wherein the Tribunal relying on the judgment of the Apex Court in the case of CCE, Hyderabad v. Divya Enterprises Ltd. [2003 (153) E.L.T. 497 (S.C.)] held in Para 5 as follows :- "We find that there is no dispute on the fact that appellants had paid 60% duty. They had paid 8% less as additional excise duty, whereas, they had paid 8% more NCCD. We find that Hon'ble Supreme Court in the case of Divya Enterprises Ltd. (supra) where the assessee paid duty on exempted product and had not paid duty on fabric used in the manufacture of the exempted product, held that the duty is to be paid on fabrics and directed the Revenue to give adjustment of duty paid on exempted final product. The Hon'ble Supreme Court further held, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular financial year to commence from the date of payment of duty and not from the date of closing of that financial year. On a specific query from the Bench as to how this judgment is relevant to the facts of that case, Ld. SDR pointed out that the case dealt with was of filing refund applications and hence an analogy can be drawn in the present case on the same lines. Likewise he relied on a judgment rendered in the case of Kansal Knitwears v. CCE [2001 (136) E.L.T. 467 (Tri. - Del.)] which deals about computation of clearances of goods for exports and the Tribunal held that the same shall not be taken into account for arriving at an assessable value but only home consumption is to be considered. Even this judgment on being pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that such adjustment cannot be done for excess payment. The Tribunal in the case of Tata Oil Mills Co. Ltd. (supra) after noting the provisions of Rule 173F(1) has held that in such circumstances appellants are entitled to ask for setoff and the Department has to calculate the excess payment as well as under payment and after adjusting one against another, raised a demand with regard to remaining amount of duty, if any. In the present case, if such adjustment no duty demand arises. The same view was expressed by the Tribunal in the case of Kothari Pouches Ltd. v. CCE (supra), in the light of the decision of the Apex Court, rendered in the case of Divya Enterprises Ltd. (supra). In the case of Divya Enterprises Ltd., Apex Court has clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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