2022 (5) TMI 644 - AT - Central Excise

Refund of excess duty paid - Finalization of the provisional assessment - applicability of Rule 7 or Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT - The appellant has no grievance as far as the computation of duty at the time of final assessment of his goods in terms of Rule 11 read with Rule 4 of Valuation Rules instead of Rule 8, thereof. There is no grievance but admission for the differential duty for entire year of 2013-14 to be calculated as Rs.10,39,750/- in appeal no. 50866/2021 and of Rs. 2,04,258/- in appeal no. 50867 of 2021. Simultaneously, it is observed that Department is not disputing that the duty determined for the entire year 2013-14 was Rs.16,30,42,152.80/- and after final assessment it comes to Rs.16,40,82,902/-. Since there is no denial that instead of the duty amount of Rs. 16,30,43,152.80/- amount of Rs. 16,39,81,197.10/- stands already paid i.e. an amount of Rs.9,38,044.30/- stands already paid in excess by the appellant in Appeal No. 50866 of 2021 and an amount of Rs.47,479/- stands paid in excess in appeal no. 50867 of 2021. Commissioner (Appeals) has failed to appreciate the said excess payment to have already been made by the appellant and to adjust the same in the differential duty demand of Rs.10,39,750/- in appeal no. 50866 of 2021. In view thereof and the no objection by learned DR for the same it is held that the differential duty in the Appeal No. 50866 of 2021 to be recovered from the appellant is only for an amount of Rs.1,01,705.7/- (Rs.10,39,750/- minus Rs.9,38,044.30/-). The order under challenge confirming the recovery of entire amount of Rs.10,39,750/- is therefore liable to be set aside on this score itself. The date of conclusion of personal hearing cannot be the relevant date for invoking the said period in case the adjudicating order pursuant to the said conclusion has not been passed. The circular is opined to be ambiguous. Otherwise also there is no provision in entire excise law to fix a time limit of one month from the date of conclusion of personal hearing to communicate the adjudicating order. In absence thereof the impugned circular is opined to not to be considered at least for rejecting the order under challenge on technical grounds. Application disposed off.

Summary

Issues:
1. Provisional assessment on goods transferred to branches for research and development and as free samples.
2. Recovery of amount from appellant for irregularly availing provisional assessment.
3. Appeal challenging Order-in-Appeal on technical grounds.
4. Error in calculation for differential duty amount.
5. Excess duty already paid by the appellant.
6. Competence of Commissioner (Appeals) during pendency of SVLDRS application.
7. Time-bar issue regarding communication of adjudication order.

Analysis:
1. The appellant, engaged in manufacturing electric energy meters and gas meters, requested provisional assessment for goods transferred to branches. Department alleged irregular use of provisional assessment for goods not used in further manufacture but for research and free samples. A recovery of Rs. 10,39,750/- was proposed, confirmed in Order-in-Original No. 45/2020.

2. The appeal challenged the Order-in-Appeal on technical grounds, including the timing of passing the order and compliance with Circular No. 1053/2/2017. Additionally, an error in the calculation of differential duty amount was raised, stating the failure to set off the excess duty already paid by the appellant.

3. The Tribunal observed that the excess duty paid by the appellant was not properly adjusted in the differential duty demand. In Appeal No. 50866 of 2021, the appellant was found liable to pay only Rs. 1,01,705.70 instead of the confirmed Rs. 10,39,750/-. However, in Appeal No. 50867 of 2021, the excess duty paid was appropriately adjusted, and the order was sustained.

4. Regarding the technical issues raised, the Tribunal held that the SVLDRS scheme did not require a stay of pending proceedings, and the time-bar issue from Circular No. 1053/2/2017 was found to be ambiguous. The Tribunal concluded that the technical grounds were not sustainable to set aside the Order-in-Appeal.

5. Ultimately, Appeal No. 50866 of 2021 was allowed due to the calculation error, reducing the appellant's liability. Appeal No. 50867 of 2021 was dismissed as no calculation error was found. The judgment was pronounced accordingly.