TaxTMI 
TaxTMI 
2015 (9) TMI 404
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....st schedule to the Central Excise Tariff Act, 1985. 3. It has been observed by the Assessing officer-adjudicating authority that during the course of scrutiny of the records for the period of December, 2002 to July, 2003, it was noticed that the assessee had cleared its product Optical Fibre Cable/Optical Fibre to M/s. Bharat Sanchar Nigam Ltd.(in short 'BSNL') (A Government of India Undertaking) on the basis of provisional prices placed by BSNL on the terms and conditions as laid down as per purchase order and paid the duty accordingly. Subsequently, when final rates were approved by the BSNL, the assessee had raised supplementary invoices for differential assessable values and also paid differential duty accordingly. 4. Howeve....
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....mposed personal penalty of Rs. 2,000/- under Rule 27 of the Central Excise Rules, 2002. 6. Dissatisfied with the imposition of the interest as well as penalty, an appeal was preferred before the Commissioner (Appeals). The Commissioner (Appeals) was satisfied on the submission of the assessee that entire amount of Rs. 3,45,413,62/- was deposited by the assessee voluntarily much before the issuance of the show cause notice dated 13-10-2004 and he accepted the contention of the assessee that when the entire amount of duty has been paid before issuance of show cause notice, therefore, the penal provision cannot be invoked as such neither interest nor penalty can be levied. The Commissioner (Appeals) also relied upon certain authorities. ....
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....d be appropriate to refer to Rule 7 of the Central Excise Rules, 2002 :- "(1) where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereon, he may request to Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond....
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....f payment thereof. " 11. In our view, under sub-rule (4) the interest arises only from the first day of the month succeeding the month for which such amount is determined till the date of payment thereof and in our view, it is very clear and unambiguous that the interest liability arises only upon determination of the value or the duty by the adjudicating authority and only after determination this liability arises. In our view, merely because an application was not moved to the Assessing Officer and which the respondent-assessee did not move on such fact, no interest would be leviable nor penalty can be said to be leviable, though requirement of the Act/Rule needs to be fulfilled but in this particular case, it would be too technical....