M/S. Andaman Timber Indus. Ltd. Vs. Cce, Calcutta-ii - Court Judgment

Excerpt:

.....of rs.91,926.04, which the appellant and adjusted against the differential duty required to be paid by them. the asstt.commissioner in his impugned order observed that the appellants were required to pay the entire differential demand of duty and for the amount of rs.91,926.04 excess paid by them they were required to file a separate refund claim. accordingly he confirmed the said demand and also imposed a personal penalty of rs.5,000/- upon the appellant. on an appeal against the above order failed before commissioner(appeals).hence the present appeal.4. shri chattopadhyay's contention is that the assessments during the relevant period was provisional and while finalising the same, the revenue was duty-bound to adjust the excess duty paid by them against the short levy in terms of rule 9b(5) without filing any refund claim under section 11b of central excise act, 1944. for this he refers to the tribunal's decision in the case of madura coats ltd.v.cce, madurai-1999(35)rlt 629(cegat). the ratio of the above decision is that the refund claim for excess duty paid provisionally is not required to be made under the provision of section 11b as the refund has to be granted in terms of.....

Judgment:

1. After dispensing with the condition of predeposit of duty and penalty I take up the appeal itself with the consent of both the sides.

2. I have heard Shri B.N.Chattopadhyay, ld.consultant and Shri V.K.Chaturvedi, ld.SDR.3. With the change in the provisions of section 4 w.e.f. 28.9.96, the appellants became liable to pay duty amount of Rs.4,98,381.14. They also laid their claim to refund of excise duty of Rs.91,926.04 excess paid by them during the relevant period. The assessments in question were provisional and as such at the time of finalisation of the assessments, the appellant submitted that the duty excess paid by them and short paid by them be considered and adjustments be made accordingly. This stand of the appellant was not accepted by the Revenue and the Asstt.Commissioner vide his impugned order confirmed the demand of duty of Rs.91,926.04, which the appellant and adjusted against the differential duty required to be paid by them. The Asstt.Commissioner in his impugned order observed that the appellants were required to pay the entire differential demand of duty and for the amount of Rs.91,926.04 excess paid by them they were required to file a separate refund claim. Accordingly he confirmed the said demand and also imposed a personal penalty of Rs.5,000/- upon the appellant. On an appeal against the above order failed before Commissioner(Appeals).

Hence the present appeal.

4. Shri Chattopadhyay's contention is that the assessments during the relevant period was provisional and while finalising the same, the Revenue was duty-bound to adjust the excess duty paid by them against the short levy in terms of rule 9B(5) without filing any refund claim under section 11B of Central Excise Act, 1944. For this he refers to the Tribunal's decision in the case of Madura Coats Ltd.v.CCE, Madurai-1999(35)RLT 629(CEGAT). The ratio of the above decision is that the refund claim for excess duty paid provisionally is not required to be made under the provision of section 11B as the refund has to be granted in terms of rule 9B(5). As such by following the ratio of the decision, I hold that the excess duty of Rs.91,926.04 so paid by the appellant was to be adjusted against the duty short paid by them. As the appellants have already deposited the duty short paid by adjusting the duty excess paid, the confirmation of demand of duty of Rs.91,926.04 is not warranted. As such the impugned orders are set aside and the appeal is allowed.