TaxTMI 
TaxTMI 
2016 (3) TMI 133
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....ing to fluctuation in the cost of raw materials and further the overhead expenses can only be determined at the end of the accounting period. The period involved in appeal No. E/40573/2014 is 2008 -2009 and the period involved in appeal No. E/40119/2014 is 2010-11. E/40573/2014 3. The brief facts of the case are as follows:- The provisional assessment for the period 2008-09 was finalized by the adjudicating authority on 07.09.2010, wherein differential duty paid was appropriated. The differential duty amount of Rs. 95,95,137/- was paid by the respondent on 30.04.2010, before the finalization order was passed. Interest of Rs. 20,53,468/- was demanded in terms of Rule 7 (4) of Central Excise Rules, 2002, on the differential amount so dete....
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....2 and the differential duty of Rs. 24,86,881/- was paid on 27.06.2012. Interest was demanded on the differential amount in terms of Rule 7(4) of Central Excise Rules, 2004. The assesse being aggrieved by the orders passed by the lower appellate authority preferred appeal before the Ld. Commissioner (Appeals) against the above two Order-in-Originals (i) No. LTUC/322/2011-DC dated 15.09.2011 and (ii) No. LTUC/315/2012-AC dated 27.09.2012 and the Commissioner (Appeals) in his order No. 48 & 49/2013 dated 23.10.13 allowed the assessee's appeal and held that they are not liable to pay interest as they have paid the entire differential duty prior to finalization of assessment. Being aggrieved by the order of the Ld. Commissioner (Appeals), the Re....
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....se, differential duty was not due at all on the date of assessment by the Asst. Commissioner and hence liability of interest does not arise. He further submits that in terms of Rule 7(3), interest is payable only when any amount is paid or payable consequent to the order for final assessment. The Ld. Advocate also submits that the issue is no longer res intergra in view of the decision of the Hon'ble Bombay High Court in the case of CEAT Ltd. Vs. CCE Nashik- 2015 (317) ELT 192 (Bom.), and Tata Motors Ld. Vs. CCE, Pune - 2015-TIOL-637-CESTAT-MUM.. In addition to the above, he relied on the following case laws: 1. Tata Motors Ltd. Vs. CCE, Pune -2008 (226) ELT 562 (Tri.-Mum.) 2. CCE, Pune Vs. Tata Motors Ltd.- (Appeal No. 54/2011/Bom.) ....
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....fore, it would be difficult to hold that the "tax payable" by him 'is not paid' to visit him with the liability to pay interest under Clause (a) of Section 11 B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible". I find that identical issue has been decided by the Hon'ble Bombay High Court in the case of CEAT Ltd. Vs. CCE Nashik (supra) and Tata Motors Ld. Vs. CCE, Pune (supra), wherein it has been held that interest is....