TMI Blog2016 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Act and, therefore, it would be difficult to hold that the “tax payable” by him ‘is not paid’ to visit him with the liability to pay interest under Clause (a) of Section 11 B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible. - Decided against revenue - E/40119/2014 & E/40573/2014 - FINAL ORDER NO: 40284-40285/2016 - Dated:- 18-2-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri. K.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under Rule 7 (4). Subsequently, the adjudicating authority rejected the refund claim vide Order-in-Original No. LTUC/125/2012-AC(RF) dated 30.03.2012. Aggrieved by this order, the respondent assesse filed an appeal before the Ld. Commissioner (Appeals). The Ld. Commissioner (Appeals) vide his Order-In-Appeal dated 02.01.2014, held that the assesse is not liable to pay the interest as they have paid the entire differential duty prior to finalization of provisional assessment and accordingly they are eligible for refund of the interest paid. Being aggrieved by the order passed by the Ld. Commissioner (Appeals), the Revenue is in appeal before this Tribunal. E/40119/2014 4. The brief facts of the case are as follows:- The prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Allahabad in the case of BHEL Vs. CCE, Kanpur - 2015-TIOL-1949 (All-HC). . He further submits that interest is payable from the date on which the duty amount is due as per Rule 7(4) of Central Excise Rules, 2002. Accordingly, interest is payable from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof . He relied on the decision in the case of Commissioner Vs. SKF India Ltd. - 2009 (239) ELT 385 (S.C.) and 2009- TIOL-82-SC-CX. He relied on CCE Vs . J.K. Industries - 2011 (268) ELT 168) (Kar.) , and Bimetal Bearings Limited Vs. CCE, Chennai - 2008 (232) ELT 790 (Tri.-LB.), in support of his arguments. Further he submits that irrespective of the fact that whether it is prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferential duty. Before proceeding further, we need to go through Rule 7 (4) of CENTRAL EXCISE RULES, 2002, which is reproduced as under:- (4) The assessee shall be liable to pay interest on such short duty payable 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. From the reading of the above sub-rule 4, it is seen that interest is payable only when any amount is payable consequent to the order for final assessment. When no amount is to be paid consequent to the order of final assessment, sub-rule 4 is not attracted at all. 8. Reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o finalization, the rule would have specifically worded so. In the absence of any such wording in Rule 7, the interpretation of the Revenue is not sustainable. The decision of the Hon ble High Court in CEAT Ltd., (supra) has been affirmed by the Hon ble Apex Court by way of dismissal of SLP No. 20219/2015 dated 14.12.2015. Further, the department s reliance on the decision of CCE Vs. J.K. Industries (supra) and Bimetal Bearings Ltd. Vs. CCE (supra) will not be applicable as the same were distinguished by the Hon ble High Court in CEAT Ltd. (Supra), which has been affirmed by the Hon ble Apex Court. I find that this Bench on identical issue has allowed the respondents appeal in CCE, Pondicherry Vs. Measurement Control India Ltd. - 2015-TIOL- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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