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TMI Blog2007 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... copper anode is received from their Tuticorin unit. It is claimed that, as per the industry practice, their final products are being priced based on the average London Metal Exchange price of copper prevailing during the month when the goods are cleared. At the time of clearance of its finished products, appellant was provisionally determining the assessable value of these goods @ 95% of the previous month's average LME price. Thereafter, at the month end (when it became possible for the appellant to determine the average price for the current month), appellant issued supplementary invoices in cases where the average LME price for the month was higher than the price at which the goods have been initially assessed; while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he confirmed the demand of Rs.6,87,98,472/- as amount payable under Section 11D(3) and also ordered recovery of interest under Section 11DD of the Central Excise Act, 1944. 4.1. Ld. Advocate submitted that the price of imported raw material is subject to variation; therefore price of their final products are also subject to variation. They have adopted a provisional value based on 95% of the previous month's average LME price for their finished products. This is the practice in the industry. This leads to a final price of the finished products sometime being higher and some time being lower. The issue of credit notes is a necessary consequence on this compulsion. 4.2. The accumulation of the credit is attributable to substantial e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to time limit prescribed under Section 11A as held in the following cases: 1. GOI Vs. Citadel Fine Pharmaceuticals, [1989(42) ELT515 (SC)] 2. Siddeshwar SSK Ltd. Vs. CCE [1997(92) ELT616 (T)] 3. Gem Cables & Conductors Ltd. Vs. CCE [1994 (72) ELT 848] 4. Thandava Co-op Sugars Ltd. Vs. CCE [2006 (205) E.L.T. 1020 (Tribunal) [2006 (132) ECR 0472 (T)] 5. Ld. SDR reiterates the findings of the Commissioner. 6. 1. We have carefully considered the rival submissions. We note that the appellant had claimed that they adopted provisional price for the finished goods cleared by them as per the industrial practice which has not been disputed. Therefore it cannot be said that they had adopted intentionally a higher price for their finished pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be assessed by the assessee and cleared. Rule 2(b) of the Central Excise Rule, 2002 define assessment as follows: "assessment" includes self-assessment of duty made by the assessee and provisional assessment under rule 7; 6.5. Since the sale value adopted was not final the assessee has chosen to provisionally adopt the value and pay the duty. Payment of duty could be either by cash tendered through TR 6 challans or through PLA or cenvat credit. There is no dispute about the genuineness or correctness of the cenvat credit taken; there is no dispute that the duty on the finished products can be paid through cenvat credit available with the assessee. The duty paid by debit in the cenvat account at the time of clearance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/8/2002 relating to money credit applicable to vanaspathy, wherein it has been clarified that in case, where duty has been deposited with the Government Section 11D shall not apply. This principle contained in the said clarification is applicable to the present case and the situation as well. 9. In the light of the above, we hold that no case has been made out to show that the credit taken was wrong; that debiting the cenvat account at the time of clearance of goods is anything other than payment of excise duty; that the amount so debited from the cenvat account goes back to the Central Government account and that there is any violation of provisions of 11D(1). 10. Appeal is, therefore, allowed with consequential relief. (Pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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