M/S. EXEL RUBBER LIMITED Vs. THE COMMISSIONER OF CENTRAL EXCISE HYDERABAD-I COMMISSIONERATE HYDERABAD

JUDGEMENT

(1.) THE facts of this case are as follows:

(2.) BOTH the appeals were heard by this Bench on 8.12.2009 when two earlier conflicting decisions of the Bench on the issue of adjustment of excess payment of duty against short -payment of duty were noted by the Bench and the issue was referred to a larger Bench vide Misc. Order No.675/2009 dated 8.12.2009. The larger Bench vide Excel Rubber Ltd. vs. Commissioner of Central Excise, Hyderabad: : 2011 (268) E.L.T. 419 (Tri. -LB) answered the reference and directed the appeals to be placed before this Bench for final disposal. Accordingly, we have heard both sides in the appeals.

(3.) WITH reference to the above decision of the larger Bench, the learned counsel for the appellant submitted before us that the impugned orders rejecting the assessee's claim for adjustment of excess payment of duty against short -payment of duty were liable to be set aside. It was further submitted that the claim for refund of the duty paid in excess was not barred by unjust enrichment as the duty burden was borne by the assessee. It was claimed that, as per the agreement between the assessee and CEAT, the latter was liable to pay to the former only the appropriate amount's of duty and accordingly any excess duty had to be adjusted through debit and credit notes from time to time. It was further claimed that such adjustments were made between the assessee and CEAT and therefore the assessee should be held to have borne the incidence of duty paid in excess. In this context, the learned counsel relied on two High Court judgments viz. Union of India vs. A.K. Spintex Ltd.:, 2009 (234) ELT 41 (Raj.) and CCE, Bangalore -I vs. Om Pharmaceuticals Ltd.: : 2011 (268) E.L.T. 79 (Kar.). According to the counsel, the assessee's claim for refund of the excess duty paid by them was not hit by the bar of unjust enrichment in view of the cited judgments. Therefore, the learned counsel claimed the benefit of the larger Bench decision. It was urged that the claim for adjustment of excess payment of duty against short -payment of duty be allowed. It was also pointed out that, in a similar case of the appellant's sister concern, the Commissioner (Appeals) vide Order -in -Appeal No.149/2004 (H -IV) dated 29.11.2004 allowed such adjustment.