TaxTMI 
TaxTMI 
2017 (5) TMI 606
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilable for assessment and valuation was required to be finalized based on CAS-4, the assessee opted for provisional assessment. 2.1 After considering the principles of CAS-4 as required under Rule 8 of the Central Excise Valuation Rule, 2000, the goods were cleared to their sister units, the value was assessed at 110% of COP(Cost of Production). 3. After considering the value assessed at 110% of COP, the department noticed that appellant short paid duty which amounts to Rs. 1,10,43,480/-, (for the period April, 2009 to 15.12.2009), and for the period from 16.12.2009 to March, 2010 the assessee paid excess duty of Rs. 26,07,897/- . The department did not allow the adjustment of excess paid duty towards the short paid, and rather direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 proper form 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 provisional assessed. (3) The Assistant Commissioner of Central Excise or the Commissioner of Central Excise as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... he had not passed on the incidence of such duty to any other person, or (b) The duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person". This rule governs the grant and finalisation of provisional assessment. Sub-rule 7(3) casts the responsibility on the Assistant Commissioner to pass order for final assessment after the relevant information is received which is required for finalising the same. The other sub-rules provide for payment of interest if excess duty becomes payable to the Central Government and also safeguards the right of the assessee to claim refund in case any amount is found paid in excess. However, this right is subject to the applicability of principle of unjust enr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest. 9. In the instant case, admittedly for certain items the Adjudicating Authority has held the short fall in payment of duty after the final assessment order as Rs. 10,63,417/-. In respect of other items, the assessee has paid Rs. 1,77,20,157/- in excess. But before imposing interest, the authority should have deducted the short fall in the excess payment made. If there is no short fall in payment of duty, payment of interest does not arise. They have treated the duty payable under two categories.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority is set-aside with consequential to them." 6. Following the above order of the Tribunal, there is no doubt that assessee is entitled to adjustment of the excess paid duty towards short paid duty. 7. In respect of another issue, i.e. payment of interest on the differential duty, the learned counsel for the appellant has referred to Hon'ble Bombay High Court decision in CCE Nagpur vs. Ispat Industries Ltd. [2010 (259) ELT 662 (Bom)] where the Hon'ble Bombay High Court has observed as under: "3. Perusal of the order of the CESTAT [2007 (209) E.L.T. 280 (Tribunal)] shows that in the present case, differential duty was paid prior to the date of final assessment. Interest under Rule 7(4) of the Central Excise Rules, 2002 is payabl....