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2015 (11) TMI 953 - CESTAT NEW DELHI (LB)

2015 (11) TMI 953 - CESTAT NEW DELHI (LB) - 2016 (336) E.L.T. 328 (Tri. - Del.) - Adjustment of excess paid duty with the short paid duty during the Financial Year 2006-07 - Finalization of provisional assessment - Difference of opinion - Majority order - Held that:- Adjudicating Authority has held that for the part of the period in hand the appellant has short paid the duty of ₹ 3,52,78,170/- and in respect of other part of the period the appellant has paid ₹ 3,53,74,279/- duty in e .....

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or the Appellant : Shri B L Narasimhan, Adv For the Respondent : Shri Pramod Kumar, Jt. CDR ORDER Per R K Singh The Appellants have filed this appeal against the Order-in-Appeal No. 234(KKG)CE/JPR-II/2010 dated 27.4.2010 which upheld the Order-in-Original No. 39/07 (Prov.Ass.) dated 28.9.2010. 2. The facts, briefly stated, are as under: The Appellants cleared their products viz. lead and zinc concentrates to their sister concerns and as the actual moisture content and arms-length price of the pr .....

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vide aforesaid order-in-original passed the following order :- "(1) I hereby, finalize the provisional assessment in respect of Lead Concentrate& Zinc Concentrate which were transferred to their sister concerns (i.e. smelter units) for captive consumption for the period from 01.04.2006 as short payment of duty amounting to ₹ 8,75,83,871/- (BED ₹ 8,58,66,650/- + Education Cess ₹ 17,17,221/-) under Rule 7(3) of the Central Excise Rules, 2002 and appropriate the duty of & .....

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to their sister concerns (i.e. smelter units) for captive consumption for the period from 12.01.2007 to 31.03.2007. Since their sister concerns (smelter units) to whom the goods were supplied have already availed Cenvat credit in respect of the duty paid on the said goods. Hence no adjustment or refund of excess duty paid would be admissible to the assessee. (3) I also order to pay interest amount of ₹ 64,49,834/-accrued on the differential duty of ₹ 5,23,04,910/-paid on 04.05.2007 .....

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ents in support of their contention:- (a] Asian Paints Ltd. Vs. CCE, Mumbai-III - 2009-TIOL-839-T. MUM (b] M/s Goetz (India) Ltd. Vs. CCE, Bangalore - 2008-TIOL-1897-T-BANG (c] H.Z.L. Vs. CCE, Jaipur-11-2006 (206) ELT 978 [T-Del). (2) Interest liability arises only from the date of finalisation of assessment. They referred judgement of CESTAT in the case of Karnataka Vidyuth Karkhane Ltd. Vs. CCE, Bangalore-III - 2007 (78) RLT 621 (CESTAT-BAN). [3]. Refund under Section 11B is not admissible onl .....

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so been held that interest is not chargeable if the duty excess paid is more than the duty short paid. 5. The ld. A.R. essentially stated that the issues involved in this case are squarely covered in Revenue's favour by the CESTAT Larger Bench decision in the case of Excel Rubber Ltd. Vs. CCE, Hyderabad - 2011 (268) ELT 419 (Tri.-LB). 6. As evident for the foregoing there are two issues involved in this case: (1) Whether inter se adjustment of duty short paid and duty excess paid during the .....

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ellants have contended that a harmonious reading of Rule 7 (supra) would clearly showed that at the time of finalisation, the question of duty short paid or excess paid arises only after the inter se adjustment of the duty short paid and excess paid during the period of provisional assessment. We find that the case laws referred to in this regard pertained to a period prior to 2011 the year in which the Hon'ble CESTAT's Larger Bench in its order in the case of Excel Rubber Ltd. Vs. CCE, .....

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provisional assessment. In its detailed order, the Hon'ble CESTAT Larger Bench concluded as follows in para 50 of its judgement: "50. The fallout of the above discussion is that once the authority on finalization of assessment finds any amount of money having been paid in excess of the duty liability ascertained in the final assessment. the excess amount so ascertained would become refundable to the assessee. Such excess amount can certainly be adjusted towards any other duty liability .....

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ally refundable and not liable to be credited to the account of consumer benefit fund. Needless to say, that the burden of proof in this regard would lie upon the assessee. The point for consideration is therefore answered accordingly. 8. While the conclusion on the issue is contained in para 50, quoted above, it is relevant to also quote the para 25, 26, 27, 28 and 29 of the said CESTAT, Larger Bench judgment for the purpose of elucidation: "25. If one reads sub-rule 6 of Rule 7, it would .....

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s have to be read along with statutory provisions comprised under the said Act. Section 11B, as already pointed out, clearly specifies that in order to justify the payment of the refundable amount to the assessee, and non-crediting thereof to the consumer welfare fund, it is necessary for the assessee to apply to the concerned authority, for such refund and thereafter the concerned authority after considering the evidences produced by the assessee should decide as to whether whole or any part of .....

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ssessee about his entitlement to get the refund cannot get matured unless, the assessee approaches the excise officer with necessary application and the proof in support of his claim subsequent to the finalization or the assessment and within the period prescribed for the same and in terms of the provisions of law. The right of the assessee would get matured in relation to the amount to be claimed as refundable only after finalization of the assessment and the necessary proof being submitted in .....

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ed under Rule 7 of the said rules nor was it there in Rule 9B of Central Excise Rules 1944. 27. The above conclusion is inevitable even upon reading Sub-rule 4 independently or along with other sub-rules of Rule 7. The Sub-rule 4 specifically provides for liability to pay interest by the assessee @ 24% per annum from the first day of the month succeeding the month for which the concerned amount is determined till the date of payment thereof, Obviously, the same is consequent to the finalization .....

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ree months from the date of order regarding the refund under sub-section 2 of Section 11B and the interest payable can vary from 10% to 36% per annum as determined by the Government from time to time. Being so, there are statutory provisions prescribing different rules as well as different methodology for calculating the interest liability in relation to the amount refundable in relation to the short duty paid having so ascertained by finalization of the assessment. Clubbing together the issue o .....

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arise only in case of refund claim and since the assessee does not claim refund, question of applicability of such principle would not arise, is totally devoid of substance. Question of assessee not applying for refund would obviously result in crediting the refundable amount, if any, to the consumer welfare fund. As already seen above, occasion to consider whether any amount therefrom is actually refundable to the assessee or not can arise only after specific claim in that regard is being made .....

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per reading of the provisions of law comprised under Rule 7 would disclose that there could be no occasion for considering two principal amounts for the purpose of interest". 9. As regards the contention of the Appellants that the Karnataka High Court in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (supra) has upheld such inter se adjustment and also held that liability to pay interest on the duty short paid does not arise if the duty paid overall is not short, it is to be noted that i .....

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and therefore the said judgement has no binding relevance as far as the issue of inter se adjustment of duty short paid and duty excess paid is concerned, because, to repeat for stress, the Hon'ble High Court was only dealing with the question of law as to "whether the Tribunal was right in confirming the demand of interest under Rule 7(4) of Central Excise Rules, 2002 without harmoniously reading the provisions of Rule 7(5) of Central Excise Rules". 10. Thus as far as the questio .....

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Toyoto Kirloskar Auto Parts Pvt. Ltd., after a detailed discussion of the provisions of Rule 7 of the Central Excise Rules, 2002, the Hon'ble Court concluded in para 9 of the judgement as under :- "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 ₹ 10,63,417/-. In respect of other items, the assessee has paid ₹ 1,77,20,157/- in excess. But before imposing interest, t .....

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underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed, if that is to be kept in mind, in the instant case, when the assessee has paid a sum of ₹ 1.66.56,740/- excess duty which is entitled to claim refund, he cannot be taxed with payment of excess duty in the form of interest, [emphasis added] The entire approach of the department is unreasonable, cont .....

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ly stated in the said para that: "If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. If that is to be kept in mind, in the instant case, when the assessee has paid a sum of ₹ 1,66,56,740/-excess duty which is entitled to claim refund, he cannot be taxed with payment of excess duty in the form of interest" .....

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s binding only in respect of the issue decided therein and the ratio laid down on that issue; the obiter dicta, if any, contained therein are not binding. A judgement is not a statute and should not be read like one. During the course of discussion in a judgement, several observations may be made in the overall context of the issue to be decided but those observations are not to be read as if they are part of the statute or even as an interpretation of the latter. A judgement has its binding for .....

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not be treated as 'any other person', then the Appellants cannot be said to have paid any (excess) duty as whatever they paid, they took it back (as credit) and as a result there is no question of refund. This is not in dispute that the excess duty paid by the Appellants was taken credit of by the recipients of the lead and zinc concentrates which clearly means that the appellants passed on the burden of the said excess duty and as a consequence they were not entitled to claim refund the .....

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le to the assessee. Thus such inter se adjustment, unless the duty excess paid is eligible to be refunded to the assessee, will do violence to Section 11B which inter alia emphatically lays down as under : [3] Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided .....

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is not eligible to claim refund of the excess payment. In the present case as discussed in the preceding para, the Appellants are obviously not eligible to claim refund of the excess duty paid and consequently inter se adjustments of duty short paid and excess paid during the period of provisional assessment is not permitted at the time of finalisation in terms of Rule 7 ibid. 17. Coming to the liability and interest on the duty short paid, it is seen that the Larger Bench of the CESTAT touched .....

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ction 11AA) and interest on refund (contained in Section 11BB) of Central Excise Act inasmuch as the provisions relating to interest on demand of duty short paid and interest on refund of duty eligible for refund are not in pari materia and the rates of interest applicable to duty short paid and to refunds are also different. While on the issue of leviability of such interest, the judgement of Karnataka High Court in the case of Toyoto Kirloskar Auto Ltd. (supra) is a binding precedence, as disc .....

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y excess paid. Therefore the said judgement of Hon'ble Karnataka High Court is clearly distinguishable and inapplicable to the present case and does not come to the rescue of the Appellants even with regard to the liability of interest on the duty short paid. 18. In view of the foregoing, we do not find any merit in the Appellants' appeal and consequently the same is rejected. (Pronounced in Court on.......................) (Archana Wadhwa) Member (Judicial) (R.K. Singh] Member (Technica .....

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ates from the mines to the smelters is being made after payment of duty and they are admittedly availing the credit of the duty so paid. As such movement of the goods by the appellant to their smelters is not by way of sale and is only an interplant transfer, the value could not be ascertained at the time of discharge of the goods, Accordingly, during the period relevant for the purpose of present appeals i.e. financial year 2006-07, the assessments were kept provisional and the appellant was di .....

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s confirmed the duty short paid by the appellant by rejecting their request for adjusting the duty excess paid during the subsequent period from 12.1.07 to 31.3.07. The operative portion of the impugned order stand held reproduced in the order proposed by my learned brother. 22. The provisional assessments are done in terms of the provisions of Rule 7 of Central Excise Rules, 2002. For better appreciation the said Rule is reproduced below: "Rule 7. Provisional assessment - (1) Where the ass .....

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ified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the asses see for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commis .....

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under sub-rule (3), at the rate specified by the Central Government by notification issued under section 11AA or section 11AB of the Act from the first day of 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 on interest on such refund at the rate specified by the Central Government by notific .....

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r (b) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. " 23. As is seen from the above, where the assessee is unable to determine the correct value of the excisable goods, he may approach the department for allowing the payment of duty on provisional basis. In terms of sub Rule (2), such provisional payment of duty may be allowed, subject to the condition of assessee executing a bond. Such provisional assessment has to be finaliz .....

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payment, arrived at on flnalization of assessment, have to be adjusted against excess payments made by the assessee for some period in between. My learned brother has relied upon the Larger Bench decision of the Tribunal in the case of Excel Rubber Ltd. vs. CCE Hyderabad as reported in [2011 (268) ELT 419 (Tri-LB)]. 25. On going through the entire order of the Larger Bench, I find that the main issue, which stand decided is in respect of refund of the excess duty paid by an assessee. In para 50 .....

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r Bench allowed the adjustment of excess duty paid on the provisional basis towards the other liabilities of the same assessee. Of course, the said adjustment is subject to unjust enrichment with which I will deal separately. If that be so, the excess duty paid by the assessee during the continuation of provisional assessment, for a particular financial year, would result in additional burden to the assessee and need to be neutralized against any short falls during another period of the same fin .....

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tire financial year 2006-2007 are meant for assessing the total duty liability of the assessee during that particular financial year. If the short fall during a particular period is required to be paid by the assessee and the excess payment made during another period falling in the same financial year is to be rejected, the entire purpose of keeping the assessment provisional, becomes a futile exercise. In that case, it becomes a case of short paid or short assessed duty for a particular period .....

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at accordingly. 26. My learned brother has also referred to Karnataka High Court decision in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. vs. CCE, LTU, Bangalore as reported in [2012 (276) ELT 332 (Kar)] and has observed that inasmuch as the issue before the Hon'ble High Court was relatable only in respect of interest for short fall, any observation made therein would not be applicable, being in the nature of obiter-dicta. On going through the said order, I find that in that case, the .....

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provisional assessment, the same is applicable to the entirety of the goods and even though the assessee has not claimed refund of excess paid duty inasmuch as they had recovered the same from their customers and would be hit by the provisions of unjust enrichment but for arriving at the appellants final duty liability, such adjustments have to be made. By observing so, the interest demand was set aside. For better appreciation I reproduce para 8 and 9 of the said decision:- "8. Therefore, .....

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t 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. .....

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ories. It was found in respect of some items the duty payable after the final order is more than what was paid under provisional assessment. The approach of the authorities in this regard is erroneous, unwarranted and unsupported by any statutory provision. If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate the revenue, interest is imposed. If that is to .....

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ng " As is clear from the above, it stand held by Hon'ble High Court that interest liability would arise only in respect of short fall of duty, which has to be arrived at after taking into account the overall short and excess payments made by the assessee. The said finding arrived at by the Hon'ble High Court of Karnataka even for the purpose of confirmation of interest has to be held as the law laid by the Hon'ble High Court. If that be so, the adjustment have to be given in th .....

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and admitted by the Hon'ble High Court of Rajasthan at Jodhpur vide order dated 13.1.10 by formulating the following substantial question of law: "(i) Whether the period of one year can be bifurcated in two imaginary parts and can it be held that the assessee has short paid the duty in the first part and paid excess duty in the order? (ii) Whether the duty paid in excess under rule 7 of Central Excise Rules, 2002 can be adjusted aginst the duty short paid? (iii) Whether the assessee is .....

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enying adjustments inasmuch as it is the appellants total duty liability which would be available as credit to the smelting units. After making adjustment of short paid duty with the excess paid duty, their net duty liability has to be arrived /which the smelting units would take credit of. If the part of the credit has already been availed, and if the ultimate duty liability is arrived at after making adjustments, the smelting unit would avail less credit to that extent. As such, it is only pri .....

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if the ultimate duty liability is arrived at after making adjustments, the smelting unit would avail less credit to that extent. As such, it is only principle of accounting and nothing else. This technical and procedural ground cannot be adopted for denying the credit. It is the appellants duty liability which has to be arrived at and it is the appellants total duty liability, paid by them which would be admissible as credit to the smelting unit. 29. Infact, I find that an identical issue was co .....

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in the case of Toyota Kirloskar Auto Parts Pvt Vs CCE, LTU, Bangalore (supra) has taken a contrary view on the same issue holding that while finalizing a provisional assessment, the excess payment of duty can be adjusted against the short payment. This judgment is with regard to the provisions of Rule 7 of the Central Excise Rules, 2002. In our view the judgment of Hon'ble Karnataka High Court is binding on the Tribunal. In view of this, there is no illegality or impropriety in Commissioner .....

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s so made. The said order of the Hon'ble Karnataka High Court has been held to be binding before the Tribunal and stands followed by the Tribunal. In view of the my foregoing discussion, I hold that the appellant is entitled to the adjustment of duty excess paid by them with duty short paid and their duty liability has to be arrived at accordingly. The interest would be calculated accordingly on the duty so short paid by them and late deposited. Difference of Opinion Whether the appeal is to .....

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ence of opinion has been placed before me for consideration. "Whether the appeal is to be rejected by denying the Appellant's request for adjustment of excess paid duty with the short paid duty during the Financial Year 2006-07 as held by Member (Technical) or such adjustments have to be allowed as held by Member (Judicial)." 33. The Ld. Counsel for the appellant submits that the Ld. Member (Technical) has relied on the decision of Larger Bench of this Tribunal in the case of Excel .....

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inancial Year 2006-07 the appellant opted for provisional assessment and for the period 01.04.2006-11.01.2007, there was a short payment of duty amounting to ₹ 3,52,78,791/- but during the period 12.01.2007-31.03.2007 the appellant paid excess duty of ₹ 3,53,74,279/-. As appellant has paid excess duty during a certain period and have paid short duty during a certain period, therefore, the appellant sought adjustments of excess duty paid with short duty paid but the Adjudicating Autho .....

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arger Bench of this Tribunal. Therefore, to decide the issue first I have to see the facts in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (Supra) whether the fact of the said case are similar to the case in hand or not. 35. The fact in that case are as under: 2. The assessee are the manufacturers of parts of motor vehicles such as Front Axle, Read Axle, Propeller Shaft, Stiffener etc. These goods are cleared on payment of appropriate central excise duties. The major buyer of these goods is .....

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cial year 2007-08. Accordingly, the order dated 24-4-2007 came to be passed in terms of Rule 7 of the Central Excise Rules, 2002 and subject to execution of bond of ₹ 50 lakhs with bank guarantee for ₹ 12.5 lakhs. Bands were executed and the bank guarantee was furnished. Thereafter, on 25-9-2008, the assessee requested for finaiization of the subject provisional assessment. After considering the entire material made available, the Assessing Authority passed the final order which read .....

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,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 ₹ 10,63,417/- including Education Cess and Secondary & Higher Education Cess paid by the assessee vide Invoice No. 2733 dated 25-9-2008 is appropriated. 4. I demand payment of interest amounting to ₹ 1,34,634/- (Rupees One lakh thirty four thousand and six hundred and thirty four only) in terms of sub-rule (4) of .....

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ent for the financial year 2007-08 since the same has already been passed on to M/s. Toyota Kirioskar Motor and the same has been taken into account." 3. The assessee contended that if the total duty paid provisionally is taken into consideration, there was no short payment of duty at all. On the contrary, they had paid the excise duty in excess of ₹ 1,66,56,740/- and therefore, the question of payment of interest on the ground of short payment of duty in respect of certain items woul .....

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7. A perusal of the aforesaid provision makes it clear that, where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the competent authority as provided in the said provision, to permit him to pay the duty on provisional basis at such rate or on such value as may be specified by him. If the authority is satisfied, he may pass an order permitting such payment and taking all necessary steps for payment of any short fa .....

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final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment 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 provi .....

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der as ₹ 10,63,417/-. In respect of other items, the assessee has paid ₹ 1,77,20,157/- in excess. But before imposing interest, the authority should have deducted the short fall in the excess payment made. If there is no short fall in payment of duty, payment of interest does not arise. They have treated the duty payable under two categories. It was found in respect of some items the duty payable after the final order is more than what was paid under provisional assessment. The appro .....

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ot be taxed with payment of excess duty in the form of interest. The entire approach of the department is unreasonable, contrary to the scheme of the Act and negatives the principle underlying these provisions. Therefore, all the authorities were in error in levying and upholding the levy of interest. 37. As the facts of this case are similar to the facts in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. (Supra) therefore, the decision of the Larger Bench of this Tribunal in the case of Excel .....

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