2019 (12) TMI 850 - AT - Central Excise

Tribunal allows appeal on adjusting excess duty paid against short payments

The Tribunal allowed the appellant's appeal in a case concerning provisional assessment under Rule 7 of Central Excise Rules, 2002. The appellant's ... Adjustment of excess paid duty with less paid duty - the short payment of duty is during the month of July and August, 2016 - there has been simultaneous excess duty paid during the other months which is much more than the alleged short paid duty - provisional assessment - Rule 7 of Central Excise Rules, 2002 - HELD THAT:- After a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately - Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. In the present case, it is an admitted fact that duty of ₹ 4,42,65,588/- has been paid by the appellant in excess for the period from April 2016 to June, 2016 and September 2016 to March, 2016. However, there is short payment of duty of ₹ 1,20,75,019/- during July and August, 2016. In view of above provision, the appellant was entitled for refund of ₹ 4,42,65,588/-. This is also an admitted fact that the sister concerns (smelter units of the appellants) to whom the goods were supplied have already filed the cenvat credit in respect of the duty paid on the said goods. The refund has rightly not been claimed by the appellant - where the goods are supplied to the sister concern for captive consumption, the adjustments of excess duty towards short payment in the subsequent period should not have been denied. In the present case, the net duty is for the financial year 2016-17 as was paid on provisional assessment basis. The short payment for two months of the same year is, therefore, to be adjusted against the excess paid during the another period of the same financial year. Revenue neutrality - HELD THAT:- It has already been held in the case of COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, VAPI VERSUS M/S TARAPUR GREASE INDIA PVT. LTD., VINOD VYAS, BHARAT VYAS, M/S STANDARD GREASE, M/S STANDARD OIL AND GREASE [2015 (11) TMI 1168 - BOMBAY HIGH COURT] that once the goods have been delivered only at the factories of the assessee from the associated Companies then no loss occurs to the Revenue - The assessee would drive no benefit by not reversing the cenvat credit on inputs when sister concerns are also eligible to take cenvat credit. The doctrine of principle of revenue neutrality is duly applicable to such cases. When CAS-4 is formed basis for arriving at transaction value, the overall duty liability/ short payment should have been arrived at after considering duty already paid during that financial year on such goods and the adjustments, if any. Accordingly the findings of the authority below denying the adjustment of excess duty paid towards the short payment of same financial year are held to be untenable - Appeal allowed - decided in favor of appellant. Issues:Provisional assessment under Rule 7 of Central Excise Rules, 2002 - Short payment of duty during specific months - Adjustment of excess duty paid in other months - Applicability of Rule 7(4) and (5) regarding interest and refund - Interpretation of Rule 7 in the context of total duty liability for the financial year.Analysis:1. The appellant engaged in manufacturing bulk concentrate sought provisional assessment under Rule 7 due to unknown factory gate sale prices. The Department alleged short payment of duty for certain months, leading to a demand of Rs. 1,20,75,019. The appeal against the Order-in-Appeal's rejection was brought before the Tribunal.2. The appellant argued that while short payment occurred in specific months, excess duty was paid in others, resulting in a revenue-neutral situation. Citing relevant case laws, the appellant contended that adjustments should be allowed, as the sister unit availed cenvat credit for the excess duty.3. The Department countered that excess duty was passed on to sister units, leaving no excess duty for adjustment. They supported the final assessment and demand made.4. The Tribunal analyzed Rule 7, emphasizing the provision for provisional assessment and subsequent final assessment. It noted the requirement for interest on short payment (Rule 7(4)) and refund for excess payment (Rule 7(5)).5. The Tribunal clarified that the total duty liability for the financial year must be considered, allowing adjustments between excess and short payments within the same period. Citing precedents, the Tribunal highlighted the principle of revenue neutrality and the applicability of adjusting excess duty against shortfalls.6. The Tribunal found that excess duty paid by the appellant should be adjusted against the short payment during the same financial year. It rejected the Department's argument regarding the sister unit's cenvat credit, emphasizing the revenue-neutral nature of the situation.7. Consequently, the Tribunal set aside the previous order, allowing the appeal and directing the adjustment of excess duty paid towards the short payment within the same financial year.8. The judgment was pronounced on 18-12-2019 by the Tribunal comprising Mr. C. L. Mahar, Member (Technical), and Mrs. Rachna Gupta, Member (Judicial).