TMI Blog2017 (5) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is entitled to claim interest on the excess duty paid by them before finalisation of assessment. As the amount paid by the respondent was during the pendency of finalisation of their provisional assessment and therefore, the same shall be treated as duty and on finalisation of provisional assessment, the respondent is entitled for interest of intervening period of excise duty paid by them - appeal dismissed - decided against Revenue. - Appeal No. E/2019/2008 - Final Order No. 60909 / 2017 - Dated:- 23-5-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Atul Handa, AR for the revenue Shri Surjeet Bhadu, Advocate for the respondent ORDER Per Ashok Jindal The Revenue is in appeal against the impugned order. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim and the same was sanctioned within three months from the date of filing. However, show cause notice was issued to deny interest on pre-deposit of Rs. One Crore and after due process, the adjudicating authority has rejected the claim of interest filed by respondent. On appeal, the ld. Commissioner (Appeals) allowed the interest to the respondent for the intervening period. Aggrieved from the said order, Revenue is before me. 2. Ld. AR submits that the amount of Rs. One Crore has been paid by the respondent as pre-deposit for entertaining their appeal by the ld. Commissioner (Appeals) and the amount was in the form of pre-deposit and not the duty. To support this contention, he relied on the decision of the Hon'ble Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisional assessment. It is an admitted fact that the respondent sought for the mechanism of provisional assessment as the amount of discounts were not known at the time of clearance of the goods. Later on, the assessment was finalised by the adjudicating authority demanding duty from the respondent which was appealed before the ld. Commissioner (Appeals) who asked the respondent to pay an amount of Rs. One Crore as assessed by the adjudicating authority. The said assessment was finalised by this Tribunal holding that the respondent is not required to pay any duty and the said order of this Tribunal has been accepted by both sides. Therefore, the order of this Tribunal finalising the provisional assessment become final. In that cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod there was change in the machinery installed in the unit of the assessee. Applying the change in parameters for the assessment of the capacity, the annual capacity of production of the assessee was reduced. Merely because the assessee was litigating for determination of his annual capacity, he cannot be permitted to raise that interest should not be charged from him on account of delay in deposit of excise duty from the date when the duty was required to be paid, especially when the capacity of production was the same as was originally fixed. Further, I find that a similar issue came up before the Hon'ble Allahabad High Court in the case of Bharat Heavy Electricals Limited (supra) wherein the question before the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It would always relate to the date of removal of the goods thereof. It is only the quantification of the differential amount of duty is ascertained consequent to the finalisation of assessment, and that too merely because the assessee was not able to ascertain the exact quantum of duty in the absence of sufficient material to finalize the valuation of the goods at the time of clearance of goods. The due date for payment of duty is statutorily fixed being the date of removal of the goods consequent to the manufacture thereof and the same cannot be changed. 19. Further, Rule 7(4) clearly provides that the assessee shall be liable to pay interest on any amount payable to the Central Government consequent to an order being passed for f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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