TMI Blog2006 (8) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 2002, it was found that the assessee had paid excess duty of Rs. 1,32,67,052/- during the period from 1-5-2002 to 31-3-2003, but during April, 2002 they had short paid Central Excise duty amount of Rs. 14,08,448/-, and held that for the excess duty paid the assessee was entitled to resort to the provisions of Rule 7(5), which they did not want to opt, and for interest not paid on the short payment of duty, the assessee was directed to deposit the amount of Rs. 14,08,448/-. 2. The assessee had applied on 26-7-2002 for provisional assessment under Rule 7 of the Central Excise Rules, 2001, on the ground that they were clearing/transferring their product to their own units situated all over India at the estimated price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed authorized representative for the department submitted that Rule 7(4) was squarely applicable where the final assessment was done in the matters where provisional assessment was allowed. He submitted that the words from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof occurring in Rule 7(4) of the said Rules enabled the assessing authority to direct separate payment of interest which was short paid. In the present case, according to him, since the differential duty amount was short paid in April 2002 by two days, interest was payable under sub-rule (4) of Rule 7, notwithstanding the fact that the assessing authority had determined that there was excess payment of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the Tribunal upheld the order of the Commissioner (Appeals) holding that while finalizing the assessments under Rule 9B of the Rules of 1944, excess duty paid should be adjusted with short payments; and on such adjustments, no liability had arisen in that case. (b) The decision of this Tribunal in MSEB Factory v. Commissioner of Central Excise (Appeals), Aurangabad reported in 2005 (187) E.L.T. 209 (Tri.-Mumbai), was cited to point out that while construing Rule 7(4) of the said Rules, the Tribunal held that the interest provision was applicable after the expiry of period of one month from the date when the amount was determined. 5. Though Rule 7 of the said Rules entitled provisional assessment, it also provided for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th with an exception of the second fortnight of March for which, for obvious reason, the duty was required to be paid by 31st March. Under sub-rule (3) of Rule 8 if the assessee had failed to pay the amount of duty by the due date, he was liable to pay the outstanding amount with interest at the rate specified by the government for the period starting from the first day after the due date till the date of actual payment of the outstanding amount. It is clear that while finally assessing a case in which provisional assessment was done, the differential duty was required to be worked out, and short payments were to be taken into account for working out the interest payable thereon on the basis of the due dates on which the payments ought to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at period, in the cases where provisional assessment is undertaken. If any amount of refund becomes due as it had become in the present case, then it was required to be credited to the Fund. However, in the present case the assessee informed the department that they were not going to claim the refund. The present proceedings are not concerned with the question whether amount paid, as duty, which included the excess amount, could be legally used for taking Cenvat/Modvat credit even to the extent of excess payment ordered to be refunded which could not have been a part of the duty payable as per the final assessment, because if it were payable and due, then there would be no question of refund. From the provisions of Rule 7(4) it is clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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