TMI Blog2016 (5) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction and the cost of production can be derived on the basis of CAS4. The CAS4 can be made only after completion of the financial year when the Balance Sheet is finalized. In such a situation, it cannot be expected from the assessee to deposit the correct duty at the time of clearance of the goods. There is no dispute that the assessee have been clearing the goods on payment of duty and they were supposed to pay the differential duty on the basis of the CAS4. The assessee have without contesting the duty liability, paid the duty which has been confirmed and appropriated in the adjudication order. The duty was confirmed under Section 11A of the Act. As per Section 11AB when the duty is determined under Section 11A interest is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter 34 48 of the First Schedule to the Central Excise Act, 1985. The goods were cleared to their own unit for which the valuation is governed by Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. According to which the value shall be 110% of the cost of production or manufacture of such goods. By arriving at the correct assessable value, the valuation is finalized only on the basis of Balance Sheet which can be determined only after closure of the financial year. It was alleged in the show cause notice that the assessee have not followed the procedure of provisional assessment as laid down under Rule 7 of the Central Excise Rules, 2002. In the adjudication, the demand of differential duty an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention involved in the facts of the case as the assessee was discharging duty under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000, and obviously differential duty can be known only at a later stage after finalizing of Balance Sheet. Therefore it is not a case of clandestine removal or suppression of fact with intent to evade payment of duty. Hence, the penalty is not imposable. 4. On the other hand, Shri N.N. Prabhudesai, Ld. Supdt. (A.R.) appearing on behalf of the Revenue submits that as regard issue of interest, once the duty demand is confirmed and admittedly paid by the assessee there is no question of avoidance of the interest on such duty. As regard penalty, he submits that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined under Rule 8 of the Central Excise Valuation Rules, 2000, according to which the valuation has to be done on the basis of 110% of the cost of production and the cost of production can be derived on the basis of CAS4. The CAS4 can be made only after completion of the financial year when the Balance Sheet is finalized. In such a situation, it cannot be expected from the assessee to deposit the correct duty at the time of clearance of the goods. There is no dispute that the assessee have been clearing the goods on payment of duty and they were supposed to pay the differential duty on the basis of the CAS4. The assessee have without contesting the duty liability, paid the duty which has been confirmed and appropriated in the adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the first date of the month succeeding the month in which the duty ought to have been paid till the date of payment of the duty. What is stated in Explanation 2 to sub-section (2B) is reiterated in section 11AB that states where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person who has paid the duty under sub-section (2B) of section 11A, shall, in addition to the duty, be liable to pay interest..... It is thus to be seen that unlike penalty that is attracted to the category of cases in which the non-payment of short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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