JYOTHI LABORATORIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE captioned appeal along with stay application has been filed by M/s. Jyothi Laboratories Limited against demand of Rs. 2,76,496/ - found due on finalization of provisional assessment of the goods manufactured and cleared by the appellants during the period 1.4.2005 to 31.3.2006. In the impugned order Commissioner (Appeals) has upheld the order of the original authority.

(2.) THE brief facts of the case are that the duty due on the plastic bottles manufactured and captively consumed by the appellants for packing the exempted finished products, is ascertained at the end of every financial year. The assessment of the plastic bottles captively consumed is finalized after the close of the financial year and finalization of their accounts. On finalization, the appellants found that they had short paid an amount of Rs. 2,53,457.61 after adjusting the excess payment made on the material captively consumed. The lower authorities were of the view that the assessee had to pay the amount short paid on finalization of provisional assessment and claim refund of the excess paid amount separately. On the above basis the Assistant Commissioner determined and demanded the amount of duty due from the assessee as Rs. 2,76,496/ -. He also demanded interest on the amount found due.

(3.) LD . Counsel for the appellants submits that Rule 7 of the Central Excise Rules does not envisage the course of action adopted by the lower authorities and relies on the decisions of the Tribunal in CCE, Jaipur -II v. Bhilwara Processors 2006 (205) ELT 996 (Tri. Del) and Bajaj Tempo Ltd v. CCE, Pune . In Bhilwara Processors case the Tribunal had agreed with the view taken by the Commissioner (Appeals) and held that the erstwhile Rule 9(B) of the Central Excise Rules, 1944 and the Rule 7 of the Central Excise Rules, 2001 were basically to the same effect and that on finalization of provisional assessment the authorities should have adjusted the amount of duty recoverable from the assessee against the excess payment made. It is submitted that following the above ratio, the appellants were required only to make payment of the net amount due. It is submitted that in Bajaj Tempo Ltd. case (supra) the West Zonal Bench, Mumbai had held a similar view in a case where the clearances were made to another unit of the same assessee.