TMI Blog2015 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order is unsustainable and liable to be set aside - Decided in favour of assessee. - Appeal No. E/90117/14- Mum - - - Dated:- 5-6-2015 - Mr. M.V. Ravindran, Member (Judicial) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri H.M. Dixit, AC (AR) ORDER This appeal is directed against Order-in-Appeal No. EXCUS-000-APP-47-14-15 dated 13.10.2014. 2. Heard both sides and perused the record. 3. On perusal of the record, it transpires that the issue involved in this appeal is regarding the interest liability on the appellant in respect of the assessment which was provisional and later on finalised. 4. It transpires from the records that the appellant had sought provisional assessment of the goods cleared by them during the period April 2011 to March 2012. The provisional assessments were finalised on 27.08.2012. Before the Adjudicating Authority/ competent authority finalised the assessment on 27.08.2012, the appellant on their own calculated the differential duty payable and paid the same on 28.06.2012. Show-cause notice dated 22.08.2013 was issued demanding interest from the appellant. Appellant contested the matter before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Then, comes sub-rule (3) where a period is prescribed for finalizing the assessment. Then, comes sub-rule (4) by which a liability to pay interest on any amount payable to Central Government, consequent to order for final assessment under sub-rule (3), at the rate specified by the Central Government by notification issued under the relevant statutory provision. The interest is payable from the date specified in the later part of sub-rule (4). What the Tribunal found in this case is that the Assessee had before finalizing of the assessment remitted or paid the differential duty. Thus, the assessment provisionally made resulted in payment of that sum and specified in the provisional assessment order. Further, the Assessee volunteered on its own to determine the liability of duty and the amount in that behalf came to be paid. That was before the finalization of the assessment. There resulted nothing consequent to finalizing of assessment. The amount as received earlier, namely, on provisional assessment and the later voluntary exercise of the Assessee was the sum payable and recoverable. It is in these circumstances that the Tribunal proceeded on the footing that Rule 8 will be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the Larger Bench decision in Cadbury India Ltd. relied upon the aforesaid view of the High Court of Karnataka, it lost sight of the fact that the High Court of Karnataka was considering a somewhat different situation. There was nothing therein which would enable the larger Bench to hold that the interest which is contemplated by Rule 7(4) is payable in all cases and, therefore, even if the Assessee makes payment of the differential duty prior to finalization of assessment, interest would still be leviable, payable and recoverable in terms of Rule 7(4). For that the Tribunal took assistance of Section 11AA and Section 11BB. 29. We do not find this conclusion of the Tribunal to be correct. As has been rightly urged before us that when a statute levying and imposing tax makes specific provision for recovery of interest on delayed payment only, then, such interest and the liability to pay the same arises. In that regard, the Constitution Bench judgment in the case of J.K. Synthetics Limited v. Commercial Taxes Officer (supra) referred to the Rajasthan Sales Tax Act, 1954. It referred to Section 11B at page 281 of the judgment and at page 282 in para 5 it reproduced sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardless of the reason which impelled the Legislature to provide for charging interest, the Court must give that meaning to it as is conveyed by the language used and the purpose to be achieved. Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax must be construed as a substantive law and not adjectival law. So construed and applying the normal rule of interpretation of statutes, we find, as pointed out by us earlier and by Bhagwati, J. in the Associated Cement Co. case, that if the Revenues contention is accepted it leads to conflicts and creates certain anomalies which could never have been intended by the Legislature. 17. Let us look at the question from a slightly different angle. Section 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than 15 days. The requirement of Section 7(1) is undoubtedly a statutory requirement. .. 30. In the case before this Court in Commissioner of Central Excise v. Ispat Industries Ltd. the facts were that differential duty was paid prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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