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2015 (7) TMI 1078 - HC - Central ExciseInterest Under Section 11 AB - Procedures laid down in rule 7 of the Central Excise Rules, 2002 - Whether interest under Sub-Rule 4 of the Rule 7 of the Central Excise Rule, 2002 is leviable, even if such assessment is deemed provisional? - Whether, subsequent payment of differential duty on account of retrospective price escalation of excisable goods shall be deemed to be a case of short assessment and short levy of such goods cleared earlier and, as such interest shall be demandable in terms of Section 11A and 11AB of the Central Excise Act, 1944? - Held that:- Whenever any application for classification of goods is pending before the respondent authority and if the goods are being removed in such cases also there is no presumption for provisional assessment. There is bound to be an application preferred by such manufacture also otherwise, he will be liable to pay the interest upon delayed payment of duty and the penalty. Thus, in the facts of the present case CESTAT, Kolkata cannot presume that earlier assessment was provisional in nature in absence of any application preferred by the respondent under Rule 7 (1) of Rule, 2002. In view of the aforesaid it has been held by the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. International Auto Limited reported in (2010 (1) TMI 151 - SUPREME COURT OF INDIA ) that whenever there is a delayed payment of duty and there is no order for provisional assessment the assessee manufacturer is liable to make payment of the interest upon delayed payment of the duty. In view of aforesaid observations substantial questions of law have been answered accordingly that earlier assessment was never provisional in nature and it cannot be deemed to be provisional in nature as decided by the CESTAT, Kolkata, especially, in absence of any provision in the Central Excise Act 1944. In the Rule 2002 there is bound to be an application for provisional assessment by the manufacturer under Rule 7 (3) and there is bound to be an order passed by the Central Excise for provisional assessment which is not present in the facts of the present case. Respondent is bound to make payment of interest under Rule 7 (4) even if the earlier assessment is provisional in nature. Differential duty has been paid at much later stage after removal of the goods and, therefore, the respondent is liable to make payment of interest as demanded under Section 11 AB of the Central Excise Act, 1944.
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