2011 (9) TMI 228 - AT - Central Excise

Application for provisional assessment - Assesse contended that there is no material to show that there was any application for provisional assessment - claim of the appellant is that they have discharged their liability prior to finalization of assessment on 14.12.2007 there may not arise interest liability - Held that Para 7 of the appellate order does not indicate the date on which application for provisional assessment was made to the authorities - Reason also not recorded - Matter remanded - decide the issue afresh and granting opportunity of hearing to the appellant.

Summary

Issues:
- Provisional assessment for the year 2006-07
- Discharge of liability without interest payable
- Overlapping of adjudication
- Interest liability based on final assessment

Provisional Assessment:
The appellant claimed that provisional assessment existed for the impugned period, citing the decision of the Hon'ble Bombay High Court in a specific case. The Asst. Commissioner finalized the assessment for the year 2006-07 before which the appellant had discharged its entire liability without any interest payable. The appellant argued that there was an overlapping of adjudication, making the appellate order unsustainable. On the other hand, the learned DR contended that there was no evidence of any application for provisional assessment. The Revenue relied on various decisions to support the argument that interest liability can be determined by the final assessment, thus necessitating payment by the appellants.

Remand for Fresh Decision:
After hearing both sides and examining the record, the appellate tribunal noted that crucial details regarding the application for provisional assessment were missing in the appellate order. The tribunal emphasized the need to determine liability based on the application for provisional assessment and the cited judgments. Consequently, the matter was remanded to the first appellate authority for a fresh decision. The first appellate authority was instructed to obtain the entire record from the authority below and provide the appellant with an opportunity to present their case. As the matter was remanded for a fresh decision, all legal pleadings were deemed open to the appellant before the first appellate authority.

This judgment underscores the importance of proper documentation and consideration of all relevant factors in determining liability in cases involving provisional assessment and interest payments. The remand for a fresh decision aims to ensure a thorough examination of the issue, allowing for a fair opportunity for both parties to present their arguments before a final decision is reached.