TaxTMI 
TaxTMI 
2019 (4) TMI 721
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.... It claimed various deductions/discounts in the assessable value and accordingly, applied for provisional assessment of duty. The Assistant Commissioner of Central Excise, by order dated 23.02.2007 had accepted the provisional assessment of duty under Rule 7 of the Central Excise Rules, 2002. The adjudicating authority allowed the discounts, after considering the normal transaction value, as discussed in CBEC Circular dated 30.06.2000 and duly confirmed by the Chartered Accountant. It was also directed the appellant to pay the short paid differential duty of Rs. 7,30,719/- along with interest on the clearance effected during the period 01.04.2006 to 31.03.2007. It has been observed that the appellant may file a refund claim for the excess d....
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.... dated 10.08.2009 passed by the Tribunal is reproduced below:- "3. The Ld. Counsel has argued in defence of abatement of cash discount from assessable value ordered by the original authority, on the strength of Tribunal's Larger Bench decision in Arvind Mills' case. On the other hand, the Ld. DR has referred to Lucas TVS Ltd. vs CCE. Chennai [2009(233) ELT 192(Tri.-LB), wherein, it was held that transaction value includes any amount whether payable at the time of sale of at any other time and that any amount that the buyer was liable to pay by reason of, or in connection with, the sale of goods, whether payable at the time of sale or at any other time, was part of the transaction value. It is pointed out that the view taken by the Larger B....
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....sessee is bound to make a claim for refund under Sec.11B read with Rule 7(6) and also to prove that they had not passed on the burden of duty to any other person. Otherwise, according to the Ld. DR any cash refund of duty paid in excess would not be permissible to assessee. Relying or Gujarat State Fertilizers & Chem. Ltd. vs CC&C.Ex. Vadodara [2005(188)ELT 92 (Tri-Mumbai)], the Ld. DR has also submitted that no adjustment can be granted on finalization of provisional assessment. 5. We have considered the submissions. Admittedly, the assessee had resorted to provisional assessments under Rule 7(1) after obtaining the requisite permission from the proper officer of Central Excise for the period 2006-07. Duty was paid on a provisional basis ....
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....Since sub-rule (6) of Rule 7 insists on the assessee to furnish proof against such passing of duty burden to any other person, this burden of proof needs to be discharged transactionwise or invoicewise. Sub-rule (6) has a nexus to sub-rule (3) and the latter has a nexus to sub-rule (1). In the result. What is required under Rule (7) is provisional assessment transaction-wise/invoicewise followed by finalization of such assessment. If, upon finalization of such assessment, the assessee is found to have short-paid duty, he has to pay it up with interest. If upon such finalization of assessment, the assessee is found to have made excess payment of duty, he can claim that amount of duty in terms of Sec. 11B of the Central Excise Act read with s....