TaxTMI 
TaxTMI 
2017 (3) TMI 1098
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.... basis. The appellant, being aggrieved by the final assessment order dated 28-4-2005 filed an appeal before the Commissioner(Appeals) on the ground that since the provisional assessment is for the entire year 2003-04, the total duty paid during the said year should have been considered against the duty payable in the final assessment. The Commissioner(Appeals) by the impugned order rejected the appeal of the appellant upholding the order of the assessing officer, therefore appellant is before me. 2. Shri Prakash Shah, Ld. Counsel for the appellant submits that provisional assessment was done in terms of Rule 7 of the Central Excise Rules 2002, according to which finalization of the assessment should be done taking the consolidated clearances for the year 2003-04. Accordingly, the only short payment of duty arose is Rs. 2,37,251/-, the assessing authority has computed the duty paid and payable on monthly basis and wherever there was short payment that has been consolidated for the entire year and raised as demand, which is not correct. He submitted that for the entire year the duty short paid either on the consignment or during monthly and the duty excess paid on the consignment or....
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.... the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1) : Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissioner of Central Excise for such further period as he may deem fit. (4) The assessee shall be liable to pay interest on any amount payable to Central Governm....
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....se Rules, 2002 without harmoniously reading the provisions of Rule 7(5) of the Central Excise Rules, 2002? 6. Rule 7 reads as under :- "Rule 7. Provisional assessment. - (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the 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 in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant ....
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....ing all necessary steps for payment of any short fall in the duty payable at the end of assessment. Thereafter, a final assessment order is to be passed. If after the final assessment, if it is found that there is a short fall in payment of duty, sub-rule (4) provides for payment of interest on such short payment of duty. Whereas sub-rule (5) provides for refund of excess duty paid. 8. Therefore, it is clear 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. If after taking into consideration the duty payable in respect of al....
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....r taking into consideration duty payable in respect of all goods and duty paid in pursuant to the final assessment order if still the assessee is due in any duty then for short fall in payment of duty the assessee is liable to pay interest." BSL Ltd(Supra) 6. Coming first to the appeal No. E/490/2008 filed by the appellant against order-in-appeal No. 580 (RKS)/CE/JPR-II/2007 dated 30/11/07 passed by Commissioner of Central Excise (Appeals), Jaipur, we find that this order of the Commissioner (Appeals) has been passed in respect of Department's review appeal against order-in-original dated 11/03/05 and by this order, the Commissioner (Appeals) has held that the finalization of the assessment-should have been done invoice wise and no adjustment of excess duty paid during a month against short payment during the same month should have been allowed. However, we find that against the same order dated 11/03/05 of the Deputy Commissioner by which he had disallowed the adjustment of excess payment of duty of Rs. 3,54,467/- during certain period of provisional assessment against the short payment during, the period of Rs. 14,60,053/-, the assessee had filed an appeal before the Commis....