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TMI Blog2023 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... d and therefore permission cannot be granted on general basis for provisional assessment". 2.1 Appellant is a public sector unit located in Jhansi. For the various reasons the value of the goods could not have been determined at the time of clearance. All the contracts which were entered into for supply of Large Thermal/ Hydro power and Transmission Project & with Indian Railways were having a price variation clause. The prices were finalized subsequently after three to four years for the finalization on the prices by Ministry of Heavy Industries & Ministry of Railways. Differential duty was paid on finalization of the assessment on the value so determined finally. 2.2 Appellants were constantly working under the scheme of provisional assessment from 1990 onwards and even after introduction of Central Excise Rules, 2002 the permission was granted and everything was proceeding smoothly till December, 2016. 2.3 In December, 2016 the jurisdictional Assistant Commissioner observed that provisional assessment permission could not be applied on monthly basis and be granted every month for the assessment of that month. This order has been upheld by the impugned order. Hence, this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment which is on account of the reason that the correct value for rate could not have been determined. 4.4 In case of Exel Rubber Ltd [2012 (284) E.L.T. 399 (Tri. - Bang.)] held as follows:- "9. After examining the scope of Rule 7 (assessment), Rule 8 (manner of payment) and Rule 12 (filing of return) of the Central Excise Rules, 2002, we have found a valid point in the submissions of the learned SDR. Rule 7, which provides for the procedure of provisional assessment of duty by the assessee and its finalisation by the proper officer of Central Excise, says that any amount payable to the Central Government consequent to the final assessment shall be paid with interest at the prescribed rate. The interest is required to be paid from the first day of the month succeeding the month for which such amount of duty is determined, till the date of payment of duty. Rule 7 also provides for refund of excess duty to the assessee consequent to final assessment, with interest thereon at the prescribed rate from the first day of the month succeeding the month for which such refund is determined, till the date of refund. These provisions contained in sub-rules (4) and (5) of Rule 7 clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ER-1s) provisionally for the period from April 2004 onwards under Rule 7. Such permission given by the Assistant Commissioner for provisional assessment of monthly returns for a financial year or longer period cannot be any basis for claiming adustment of excess payments against short-payments upon finalisation of the provisional assessments. In our view, where the law provides for filing of monthly returns, payment of duty on monthly basis and finalisation of provisional assessments on the same basis, any adjustment of excess payment of duty against short-payment of duty cannot be claimed otherwise than on monthly basis. 11. In the impugned orders, the learned Commissioner (Appeals) noted inter alia thus: "In any case, the provisional assessment has to be finalized in respect of each RT-12 return filed in a particular month" (vide para 11 of each of the impugned orders). This finding of the appellate authority, which is in accord with the provisions of Rule 7 ibid, has not been challenged by the appellant. Therefore the appellant is precluded from claiming total adjustment in one go for the entire financial year. They can claim adjustment only within the period covered by each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAIL in August 2006. However, upon receipt of notice under Section 11AB of the Act calling upon it to pay more than Rs. 15 crores as interest under Section 11AB. SAIL raised various objections. It, in fact, contended that this is not a case of short payment of duty as the price at the time of actual removal of goods formed the basis for which duty was duly paid. It was not liable to pay the differential duty. Rebutting the case of the department, it was contended that it was not liable to resort to provisional assessment under Rule 7. The Commissioner however, took the view that the price which were shown originally by SAIL was itself provisional. It was a case where the assessee should have invoked Rule 7 and proceeded to make the provisional assessment. In appeal before the Tribunal, the assessee-SAIL continued with its contention that it actually was not liable to pay the differential duty. The Tribunal as already noticed following the judgment of this Court in SKF case (supra) which came to be delivered by that time dismissed the appeal of the assessee. Before the Bench which referred the matters to this Bench however, the appellants have made it clear that they are indeed lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Apex Court in the case of Appellant i.e. Bharat Heavy Electricals Limited [2022 (382) E.L.T. 161 (S.C.)] holdings as follows: 6. The issues raised in this case are squarely covered in Steel Authority of India Limited (Supra). Interest would be payable from the due date of payment of provisional duty for the purpose of removal of the goods in question till the date of payment of the balance/differential duty upon final assessment. 4.6 We note that the issue involved in the present case has become inconsequential. The counsel for the appellant submits that they have from the date of clearance in 2017, in all the cases, the case, determined the final value and paid the differential duty along with the interest as has been held by the Hon'ble Apex Court. On payment of differential duty along with interest on finalization of value subsequent to the clearance of goods, no further action is due against the appellant except in case where the duty has been short paid, for any reason in pursuance of the impugned order which otherwise by the lapse of time has become inconsequential. 5.1 The appeal filed by the appellant is in-fructuous but for the statistical purposes the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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