TMI Blog2011 (3) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... has to pay the balance in duty, he is also liable to pay interest on such short payment of duty from the due date. The only advantage is, he will get the benefit of one month from the said due date as is clear from Rule 7(4) - Therefore, the order passed by the Tribunal holding that interest is payable from one month from the date of final assessment order is erroneous and is liable to be set aside - Decided in favour of assessee. - 8-9 of 2007 - - - Dated:- 1-3-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri N.R. Bhaskar, Sr. CGSC, for the Appellant. S/Shri Lakshmi Narayana for Kiran S. Javali, Advocates, for the Respondent. [Judgment per : N. Kumar, J.]. These two appeals are by the revenue challenging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent-assessee in accordance with Rule 7(3) of the Central Excise Rules, 2002 and accordingly a sum of Rs. 24,415/- was claimed as interest in respect of plant-I In respect of plant-II it was held interest is payable by the assessee in terms of Rule 7(4) of the Central Excise Rules, 2002 read with Section 11AA and 11BB of Central Excise Act, 1944 on the short paid duty of Rs. 48,72,582/-. 3. The assessee aggrieved by the said order preferred an appeal before the Commissioner of Appeals. He upheld the order of the assessing authority. Aggrieved by the same, the assesses preferred an appeal to the Tribunal. 4. The Tribunal by the impugned order, following the judgment in MSEB Pole Factory v. CCE [2005 (187) E.L.T. 209 (Tri. - Mumbai)] he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that as is clear from Rule 7(4), the liability to pay interest consequent to the order for final assessment under sub-rule (3) is to be calculated from the first day of the month succeeding the month for which amount is determined till the date of payment thereof and not from the first day of the month succeeding the month in which the final order of assessment is passed as wrongly held by the Tribunal. 7. Per contra, the learned Counsel appearing for the assessee pointed out that Section 11A(3)(ii) defines relevant date . For the purpose of Section 11A where it provides that relevant date means in the case where duty of excise is provisionally assessed under this Act or the Rules made thereunder, the date of adjustment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty applicable thereto, Rule 7 provides for provisional assessment. Under the said provision, the assessee may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing, giving reasons for payment of duty on provisional basis and the authority may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. The payment of duty on provisional basis is allowed subject to assessee executing a bond binding himself to pay the difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. Thereafter, within a period not exceeding six months from the date of communication of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept the said interpretation placed by the Tribunal on this provision, namely, Rule 7(4). 14. In fact, sub-section (3) of Section 11A defines the word, relevant date as under : (3)(ii)(C)(b) relevant date , means, - in the case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof . 15. Therefore, the Parliament consciously has not stated that the relevant date on which the adjustment of duty is made is the date of final assessment thereof. In the final assessment, the rate of duty payable is finally determined. That was the duty which was payable by the assessee under Rule 8 on the 6th date of the following month if the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty and if that duty is adjusted, there is no liability to pay duty at all, there is no short payment and therefore the question of payment of interest would not arise. That is the matter to be considered by the Assessing Authority and if the assessee has paid excess duty or if the differential duty has been paid before the final assessment order, the Assessing Authority has to consider the liability of interest in the light of the aforesaid provision and pass appropriate orders and grant relief to the assessee if he is entitled to in law. 17. In that view of the matter, the appeal is allowed. The impugned order is hereby set aside. The substantial question of law is answered in favour of the Revenue and against the assessee. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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