TMI Blog2019 (4) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider the adjustment of short / excess payment of duty upon finalization of such assessment. In view of the conflict of opinion of two Larger Bench as stated above, the Division Bench had again referred the matter to the Larger Bench. The Larger Bench of the Tribunal, in the case of Gujarat Guardian Ltd. vs Commissioner of Central Excise, Surat, [2005 (5) TMI 127 - CESTAT, MUMBAI], while deciding the reference, has observed that in view of the decision of the Hon’ble Supreme Court in the case of Commissioner vs SKF India Ltd., [2009 (7) TMI 6 - SUPREME COURT], there is no need for reference of constituting of five members bench. The matter is required to be re-examined by the original authority in the light of the decision of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d finalized the provisional assessment for the year 2006-07. The appellant had filed the appeal before the Learned Commissioner (Appeals) against the demand of duty and also claimed the adjustment of excess/short payment of duty. Revenue had also filed appeal against the adjudication order to the extent of allowing the discounts by the original authority. The Learned Commissioner (appeals) had rejected the appeal filed by the appellant and allowed the appeal of Revenue. Hence, the appellant had filed two appeals before this Tribunal. By final order No. S/302-303/09/EB/C-I and A/260-261/09/EB/C-I dated 10.08.2009, the Tribunal had set aside the orders of the Learned Commissioner (Appeals) and allowed the appeal of the appellants by way of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld. DR has also claimed support from yet another Larger Bench decision viz. Commissioner of Central Excise, Mumbai vs Supreme Petrochem Ltd [2009(240)ELT 38(Tri-LB), wherein also the definition of transaction value was interpreted in a way different from the interpretation given to it in Arvind Mills case (supra). Apparently, there is no finality of the view taken in Arvind Mills case. The contra view taken by the lower appellate authority is not supported by any clear judicial authority. In our view, the Ld. Commissioner (Appeals) should reconsider the issue and render fresh decision thereon. He was exceeding his jurisdiction by remanding the case to the lower authority. The Commissioner (Appeals) has no power of remand under Sec.35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Asstt. Commissioner/Dy. Commissioner of Central Excise to finalize the assessment within the period specified. The Asstt. Commissioner s order in the instant case was passed under sub-rules (3) and (4) and accordingly, the duty short-paid was required to be paid by the assessee with interest. In respect of excess payment of duty for the above period, the assessee was required to file refund claim under Sec.11B. This procedure has been upheld by the Commissioner (Appeals). Sub-rule (6) of Rule 7 is a provision of law which is crucial to the instant issue. It is rather determinative of the issue. This provision read as under:- (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund: Provided that the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the original authority appears to have understood the provisions correctly, though he did not undertake the task of finalization of provisional assessments in the manner spelt out by us. This is precisely the reason why we take the view that the above aspect needs to be considered by the Commissioner (Appeals) for fresh decision in accordance with the law and the view taken by us with regard to the scope of Rule 7. 5. On perusal of the above order of the Tribunal, we find that the Commissioner (Appeals) was directed to re-consider the decision of the Larger Bench in respect of abatement of cash discount in the case of CCE, Ahmedabad vs Arvind Mills Ltd., 2006 (204) ELT 570 (Tri.- LB), as referred by the appellant and also the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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