2015 (7) TMI 184

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....n the goods already cleared before finalisation of assessment. Subsequently assessments were finalised by jurisdictional Asst. Commissioner by his orders dt.21.1.2011, 31.3.2011 & 26.8.2011 for different periods. In respect of 2 OIOs dt. 31.5.2011 and 26.8.2001, the LA demanded interest under Rule 7 (4) of CER where the differential duty was already paid by them before finalisation. In respect of remaining 5 orders dt. 21.1.2011, 31.3.2011 and 26.8.2011, the LA did not demand interest. The assessee filed appeal against the two orders and the Revenue reviewed the AC's 5 orders and filed appeals. Commissioner (Appeals) in his common order held that interest is chargeable on differential duty paid under supplementary invoices issued for the price variation and rejected the assessee s appeals and allowed the Revenue appeals. 3. Heard both sides. 4. The Ld. Advocate appearing for the appellant submits that the present case relates to finalisation of provisional assessment under Rule 7 of CER and the differential duty was paid before finalisation of the provisional assessment by the jurisdictional AC. As per rule 7 (4) of CER, interest is demandable and the assessee is liable to pa....

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....r Vs Ispat Industries Ltd. 2010 (259) ELT 662 (Bom.) (iii) Tata Motors Ltd. Vs CCE Pune 2011 (269) ELT 415 (Tri.-Mum.) (iv) CCE Vs Ispat Industries Ltd. 2014 (301) ELT A70 (SC) 4. On the other hand, Ld. A.R. reiterated the Revenue s appeal and reiterated the impugned order. He submits that interest is payable as the appellants have paid the differential duty by raising the supplementary invoices on account of price revision. He submits that Hon'ble Supreme Court decision in the case of SKF India (Ltd. (supra) is clearly applicable to the present case. He further submits that the Tribunal Division Bench in their own case (supra) on identical issue of demand of interest had dismissed their appeal and held that interest will arise from the date of clearance of goods. Since the said order is not stayed or set aside, the Tribunal order attained finality and binding on the appellant. 5. Ld.AR further submits that in the case of Ispat Inustries Ltd. relied by the appellant, Revenue filed appeal against the Hon'ble Bombay High Court order. The Hon'ble Supreme court while dismissing the appeal has also clearly held that question of law is kept open. He relied the following citations :- ....

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....ia Ltd. it is submitted that though the decision does not deal with the issue of charging interest on payment of duty on finalisation of assessment, it does cover cases where the duty is paid at any subsequent date by the assessee on account of revision of price. The provisional assessment in the case in hand was resorted to because the appellants were not certain about the price at the time of removal of the goods. In other words, the provisional price was subjected to revision. Resort to Rule 7 protects the assessee from penal action which can be attracted for failure to pay the appropriate duty at the time of removal of the goods. Merely because the appellants took shelter of the provision of law comprised under Rule 7 that cannot exonerate the payment of interest on the delayed payment of duty. The situation in the case in hand is akin to the price revision at a future date and the same is fully covered by the decision of the Apex Court in S.K.F. India Ltd. case. Undisputedly, the differential duty was paid subsequent to the date of payment due at the time of removal of the goods. Finalization of the assessment does not alter the procedure of levy and collection of duty consequ....

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....so, the expression becomes payable under Section 37(2)(ibb) would relate to the date on which the duty was payable i.e. at the time of clearance of the goods in terms of the said Act. Merely because the differential amount of duty is ascertained consequent to the finalization of assessment, the due date for payment of such amount never stands changed or extended. It would always relate to the date of removal of the goods thereof. It is only the quantification of the differential amount of duty is ascertained consequent to the finalization of assessment. And that too merely because the assessee was not able to ascertain the exact quantum of duty in the absence of sufficient material to finalize the valuation of the goods at the time of clearance of goods. That would not extend or change the due date for payment of duty. The due date for payment of duty is statutorily fixed being the date of removal of the goods consequent to the manufacture thereof, as the same cannot be changed by misinterpreting the provisions relating to the power of the Government to frame the Rules. 19. Besides, Rule 7(4) clearly provides that the assessee shall be liable to pay interest on any amount payable ....