TMI Blog2011 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... t order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration.Therefore demand of revenue is unjustified. - CEA No.103 of 2010 - - - Dated:- 13-10-2011 - Shri N. Kumar and Shri Ravi Malimath, JJ Represented by: Shri K S Ravi Shankar, Advocate for Appellant Shri C Shashikantha, Advocate for Respondent JUDGEMENT The assessee has preferred this appeal challenging the order passed by the Tribunal upholding the levy of interest on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant. 2. In respect of certain items, the provisional value adopted by the assessee is less than the final value arrived based on the Cost Accountant certificate which has resulted in short payment of duty of Rs.10,63,417/- including Education Cess and Secondary Higher Education Cess and the same is demanded in terms of Rule 7 of the Central Excise Rules, 2002. 3. The amount of Rs.10,63,417/- including Education Cess and Secondary Higher Education Cess paid by the assessee vide Invoice No.2733 dated 25.9.08 is appropriated. 4. I demand payment of interest amounting to Rs.1,34,634/- (Rupees One lakh thirty four thousand and six hundred and thirty four only) in terms of sub-rule (4) of Rule 7 of the Central Excise Rules, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of interest under rule 7(4) of the Central Excise Rules, 2002 without harmoniously reading the provisions of rule 7(5) of the Central Excise Rules, 2002. 6. Rule 7 reads as under:- "Rule 7. Provisional assessment - (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he 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 Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such raw or on such value a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the month succeeding the month for which such amount is determined, till the date of payment thereof. (5) Where the assessee is entitled to a refund consequent to order for final assessment under sub-rule (3), subject to sub-rule (6), there shall be paid an interest on such refund at the rate specified by the Central Government by notification issued under Section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund: Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant if such amount is relatable to- (a) the duty of excise p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. If after taking into consideration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest. 9. In the instant case, admittedly for certain items the Adjudicating Authority has held the short fall in payment of duty after the final assessment order as Rs.10,63,417/-. In re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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