Custom, Excise & Service Tax Tribunal
M/S. National Plywood Industries Ltd vs Cce, Chennai on 22 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/592/2009
(Arising out of Order-in-Appeal No. 13/2009 (M-III) dated 27.7.2009 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Ms. Jyoti Balasundaram, Vice-President
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Member wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. National Plywood Industries Ltd. Appellants
Vs.
CCE, Chennai Respondent
Appearance Shri G.V. Shanmuga Sundaram, Consultant for the Appellants Shri T.H. Rao, SDR for the Respondent CORAM Honble Ms. Jyoti Balasundaram, Vice-President Date of Hearing: 22.06.2010 Date of Decision: 22.06.2010 Final Order No. ____________ Vide the impugned order the Commissioner (Appeals) has set aside the adjudication order adjusting an amount of Rs.1,71,691/- against confirmed demand of Rs.2,22,338/-. He has also directed credit of the refund amount of Rs.1,71,691/- to the consumer welfare fund.
2. I have heard both sides. As regards the question of adjustment I find that the issue stands settled against the Revenue by the decision of the Tribunal in Asian Paints Ltd. Vs. CCE, Mumbai 2009 (94) RLT 122 holding that on finalization of provisional assessment, excess duty paid is to be adjusted against duty short-paid and thereafter net difference in duty is to be either demanded or refunded as the case may be. Following the ratio of the above order, I hold that adjustment is permissible in law.
3. As regards credit of the refund amount to the consumer welfare fund, I find that the assessees issued credit notes subsequent to the passing of the duty incidence. Applying the ratio of the Honble Rajasthan High Courts decision in Union of India Vs. A.K. Spintex Ltd. 2009 (234) ELT 41 (Raj.), I hold that refund is admissible to the assessees as the incidence of excise duty has been held as not to have been passed on to purchaser in cases where credit notes were raised by the assessees. Following the ratio of the above order, I hold that the assessees are entitled to the refund of amount in question.
4. In the result, I set aside the impugned order and allow the appeal.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) Vice-President Rex ??
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