RAMA TEX PROCESS HOUSE PVT. LTD. Vs. CCE

JUDGEMENT

(1.) Even though only stay application is posted today, upon hearing both sides it is seen that appeal itself can be disposed of. Therefore, I am taking up the appeal for decision after waiving the requirement for pre -deposit.

(2.) The dispute ha arisen on account of error in apportioning duty amount between basic excise duty and additional excise duty. The current order the Commissioner has held the readjustment between the two accounts is not possible, even though there was error in apportionment. Learned Counsel for the appellant points out that in an identical case of error in the previous case of the appellant himself, the Commissioner has allowed readjustment under Order in appeal No. 412 -CE/MRT -I/2004 dated 4.6.2004. He therefore, submitted that the present order is without any justification and the appeal is required to be allowed.

(3.) It is seen that on an identical case the Commissioner has passed the following order : "It is observed that the appellant were granted abatement of duty of Rs. 4,83,871/ - for the period from BED and AED in the ratio of 2:5 but the appellants wrongly apportioned this amount in BED and AED in the ratio of 3:5, as a result the BED abatement amount increased by Rs. 43,202/ - and AED abatement amount decreased by the same amount i.e. Rs. 43,202/ - the appellants took credit of the said abatement amount in their account and utilized toward payment of duty resulting short payment of duty of BED to the extent of Rs. 43,202/ -. The appellant have contended that since they had applied for adjustment of duty and since adjustment of credit from AED head of account to BED head of account had been carried out by the Pay & Accounts Office, Central Excise, Meerut vide their letter dated 22.10.2001, there is no short payment of duty and accordingly no action is warranted. In the case of Coats Viyella India Ltd. v. CCE, Madura - 2 (1999) 111 ELT 90 (T), the Hon'ble Tribunal has held that "Additional Duty of Excise being an excise duty only, deposits made against it to be considered towards adjustment to liability against the basis duty of Excise -Assessee not to resort to procedure of obtaining refund on one hand and then paying exactly the same amount again to Govt. on the other hand. Additional Duty of excise (Goods of Special Importance) Act, 1978 section 2(v) and 3 of Central Excise Act, 1944 (para 5 & 6). similar view has been taken by the Hon'ble Tribunal in case of MRF Ltd. v. CCE, Chennai reported in 2004 (164) ELT 202 (Tri -Chennai). The ratio of judgments of aforesaid case laws is squarely applicable in the present case. Moreover, adjustment of duty from AED head of account of BED head of account had been carried out by the pay & Account Officer, Central Excise Meerut, as such; there is no short payment of duty".