9911796707
TMI Blog2023 (5) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing appeal is of 38 days, which is beyond condonable period. Hence the appeal cannot be entertained, as it is hit by provisions of time bar. 8. Since the appeal is hit by the provisions of time bar, I do not discuss the issue of whether the interest is recoverable from the appellants under rule 7(4) read with then Section 11AA of CEA, 1944. In view of the above discussion, the appeal filed by the appellants is rejected." 1.2 Original authority has vide his Order-in-Original No. 159/12-13/AC/KDN/M-III dated 30.08.2012 has held as follows:- "ORDER In terms of the aforesaid detailed worksheets i.e "Annexures A", I finalize the provisional assessment for the products "Transformers (56 Nos) cleared during the period April, 2010 to March, 2011, under the provisions of Rule 7(3) of Central Excise, Rules, 2002. I demand and order for recovery of the duty totally of Rs.22,44,14,353/- (BED Rs.21,78,78,007+EdCess43,57,561/- +SHE cessRs.21,78,885/-) paid by the assessee provisionally during the year 2010-2011, and confirm the same under Section 11A of the Central Excise Act, 1944 read with para 2.6 of Pt. IV of Chapter 3 of CBEC Excise Manual of Supplementary Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice appellant issued supplementary invoices to their customers and duty is discharged on the said additional prices so determined. Assessable value of the said goods is finalized only on receipt of final working price variation for transformers cleared by them. 2.5 Jurisdictional Assistant Commissioner, after taking verification report from range Superintendent finalized the assessment as per order indicated in para 1.2 above, as reproduced below:- "i) During the period of Provisional Assessment le April 2010 to March 2011 under the IEEMA PVC there is upward revision of price for which supplementary invoices are issued. ii) The assessee vide their letter dt. 27.07.12 submitted the statement along with copies of Original invoices and Supplementary Invoices wherein there is Price variation clause is involved for the period April 2010 to March 2011. There are 90 Invoices of original clearances in respect of transformers and correspondingly only 87 supplementary invoices have been issued as in respect of 3 transformers the matter is under dispute with customer and pending approval. iii) on scrutiny of the statement, out of 87 Supplementary invoices, 31 invoices are in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant forced to opt for provisional assessment: For several years the Appellant had paid additional excise duty without paying any interest after the price determination by IEEMA. However, suddenly in 2008, at new Commissioner forced the Appellant to opt for provisional assessment procedure and thus Appellant was forced to pay the said interest of Rs.16,48,461/- for the period April, 2010 to March, 2011. Fit case for condonation of delay in filing Appeal: The Appellant submits that given the above facts and circumstances and in view of the short delay of around 8 days beyond the additional 30 day period in filing Appeal, this was fit case for the Commissioner (Appeals) to condone the delay in filing the said Appeal. 3.3 Learned AR submits that:- The appeal filed by the appellant has been dismissed by the Commissioner (Appeals) for the reason that he has no power to condone the delay beyond 30 days. In the present case the appeal has been filed with a delay of 38 days. The said view of the Commissioner (Appeals) is in line with the decision of Hon'ble Apex Court in the case of Singh Enterprises [2008 (221) ELT 163 (SC)]. The issue on merits also squarely covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules, goods become exigible to duty on removal. Assessment is to be done by assessee itself by way of self-assessment. In a case where duty is payable on the basis of the value, the assessee is to apply the rate of duty to the value and pay the duty on or before the sixth day of the month succeeding the month in which removal of the goods takes place. Undoubtedly, if the removal takes place in March, the payment is to be made by 31st of March. 50. We have also noticed what happens if there is provisional assessment. In the case of provisional assessment, the assessee entertains a doubt regarding the actual value or the rate of duty. He applies and he is permitted under the order to remove goods on a provisional assessment. The assessment is thereafter finalized. When the provisional assessment is finalized, the assessee becomes liable however to pay interest from the first date of the month succeeding the month for which the amount is determined. We have no doubt in our mind that under Rule 7(4), the expression "succeeding the month for which such amount" is determined refer to the month of removal of the goods. When the provisional assessment has such consequences, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatingly ready and able to determine the price and hence the value. We would think that it certainly presented a situation where the assessee should have resorted to Rule 7. 53. As we have already noted, SAIL has paid the differential duty of Rs. 142.78 crores even without waiting for any notice under Section 11A(1). The assessee volunteered and made payment in October 2006. We find merit in the finding by the authority that this is a case where therefore the payment made by the assessee is to be treated as one falling under Section 11A(2)(b). This meant also that there was no need for determination of the duty within the meaning of Section 11A(2)(a) or issuance of notice under Section 11A. 54. It is important to notice that when we contrast Section 11A as it was introduced with effect from 15-11-1980 with Section 11A after amendment by Section 97 of the Finance Act, 2000, we find that in the later avtar of Section 11A, the following words have been inserted : - "Whether or not such non-levy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make it a case of short payment as the payment does not match the amount of duty levied as per the self-assessment carried out by the assessee. A short-levy ordinarily would be a case where out of the ingredients of assessment, namely, (1) rate of duty, (2) valuation and (3) quantity removed, the components all or any are incorrectly applied. As an instance if the full rate of duty applicable is not applied though the valuation and the quantity is correctly arrived at, it may fall under short-levy. In one sense it could be said that there is short-payment also, as if payment could be understood as the amount which ought to have been paid but it has not been paid, it may be a case of short-payment. But it may be more appropriate to put it under short-levy where the deficit in payment is essentially in terms of a short-levy. 59. We are here concerned in these cases with one of the ingredients of assessment, namely, valuation. There is no dispute regarding the quantity removed. There is no issue relating to rate of duty. The dispute is relating to the correct value. To appreciate it better, let us take an example of an assessee who deliberately undervalues the goods which he remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short payment though juridically it may be true that it may strictly fall under short-levy. 61. While it may be true that interest cannot be demanded by way of damages or compensation and it is also further true that unless there is a substantive provision providing for payment of interest in a fiscal statute, interest cannot be demanded, we would think in the context of the Act and the Rules in question, under Section 11AB, particularly, when there is no dispute relating to liability to pay the differential duty and we notice that absence of dispute is a fair acknowledgement of the fact that the facts of the present cases are unlike the situation in MRF decision where the price was fixed at the time of removal, interest is payable as provided in Section 11AB and from the point of time indicated therein. But in these cases, the price was variable under the escalation clause which was very much within the knowledge of the assessee and the demand for interest is sustainable. 62. As far as the scope of the second explanation of Section 11A(2)(b) is concerned, it contemplates payment voluntarily by the assessee. It is without any notice being issued under Section 11A. There is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid. We would think that while the principle that the value of the goods at the time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal. The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, Section 11A and Section 11AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. We would concur with the views expressed in SKF case (supra) and International Auto (supra). We find no merit in the appeals. The appeals will stand dismissed." 5.1 Since the issue is squarely the same, we do not find any justification to allow the appeal filed by the appellant, even though the same has been dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
