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2016 (6) TMI 1093 - CESTAT NEW DELHI

2016 (6) TMI 1093 - CESTAT NEW DELHI - TMI - Excess paid duty adjusted towards the duty short paid - provisional assessments - Held that:- When there is provisional assessment, the same is applicable to the entirety of the goods and to arrive at final duty liability, adjustments of duty excess paid to the short payment have to be made. - In conclusion, it is to be held that there is no bar in adjusting the excess paid duty towards the duty short paid. Consequently, the appeals succeed in fav .....

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cise Tariff. The appellants are transferring their final products to their own smelter plants. For such transfers, the value to be adopted for payment of excise duty has to be determined as per Costing Standards CAS-4. To facilitate such determination of the value, provisional assessment was resorted to under Rule 7 of the Central Excise Rule. Dispute arose at the time of finalisation of the provisional assessments. The original authority concluded in his order dated 05.03.2007 that the appellan .....

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ld. Counsel for the appellant as well as the ld. DR and perused the records. 3. Ld. Counsel cited the decision in the appellants own case reported in 2015-TIOL-2427-CESTAT-DEL. He further submitted that this Tribunal has allowed the benefit of adjustment of excess duty paid with the short paid duty in the case of Sangam Spinners vs. CCE, Jaipur-II vide Final Order Nos. 51928 51929 / 2016 dated 02.06.2016. Ld. DR on the other hand reiterates the finding of the authorities below. 4. Provisional a .....

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such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in proper form 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 assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisional assessed. (3) The Assistant Commi .....

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d by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissioner of Central Excise for such further period as he may deem fit. (4) The assessee shall be liable to pay interest on any amount payable to Central Government, consequent to order for final assessment under sub-rule (3), at the rate of twenty four percent per annum from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof .....

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e Fund, be paid to the applicant, if such amount is relatable to (a) The duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person, or (b) The duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. This rule governs the grant and finalisation of provisional assessment. Sub-rule 7(3) casts the responsibility on the Assistant Commissioner to pass order for final assessment after the relevant i .....

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l Rubber Limited case is that before grant of adjustment the authority finalising the provisional assessment will have to ascertain whether such excess amount is to be actually refunded or is liable either wholly or partly to be credited to the Consumer Welfare Fund and only thereafter make an order of adjustment to the extent the amount found to be actually refundable. 5. However, this has been interpreted differently by the Honble High Court of Karnataka in the case of Toyota Kirloskar Auto Pa .....

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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. 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 .....

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