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TMI Blog2014 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, there is no final assessment order at all and the assessee has paid the interest before final assessment. Therefore, the question of demanding interest does not arise when there is no final assessment order or the full amount of duty has been discharged before final assessment order passed by the proper officer. - Decided in favour of assessee. - ST/990-991/2011 - Final Order Nos. 25588-25589/2013 - Dated:- 15-7-2013 - Shri B.S.V. Murthy, Member (T) Shri S. Ananthan, Chartered Accountant, for the Appellant. Shri A.K. Nigam, Additional Commissioner (AR), for the Respondent. ORDER The brief facts of the case are as under - During the scrutiny of ST-3 Returns of the appellant, it was noticed that for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Hon ble High Court of Bombay - ISPAT Industries Ltd. [2010 (259) E.L.T. 662 (Bom.)] which has been upheld by Hon ble Supreme Court [2014 (30) E.L.T. A70 (S.C.)], other decisions may not be relevant in view of the facts and circumstances which are unique to this case. 4. By Letter No. C. No. IV/01/2005/S.T. Div I/Gp. I, dated 3-5-2005, a request made by the appellant for payment of service tax on provisional basis was allowed subject to the following conditions : (i) The appellant was required to deposit a sum of ₹ 4.5 crores provisionally on a monthly basis; (ii) The assessee was required to workout the amount payable for the previous month, by the due date of next deposit, if the amount has been paid in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w payment of service tax on provisional basis on such value of taxable service as may be specified by him and the provisions of Central Excise (No. 2) Rules, 2001, relating to provisional assessment, except so far as they relate to execution of bond, shall, so far as may be, apply to such assessment. The above rule clearly means that when the permission under Rule 6(4) of Service Tax Rules, 1994 is granted, the detailed procedure to be followed is the one under the provisions of Central Excise Rules, 2001. It is not in dispute that the Central Excise Rules, 2001 2002 are pari materia or irrelevant. 6. At this stage, it was also argued by Authorised Representative (AR) that this cannot be considered as provisional assessment at all. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 7.3 It is not in dispute that no final assessment order was passed in respect of any month during the period in dispute by the Assistant Commissioner or Deputy Commissioner. It is also not in dispute that in the order there is no finding to this effect that the appellant did not follow Rule 6(5) of the Service Tax Rules, 1994 which requires them to file a memorandum in Form ST-3A. 7.4 If I appreciate the relevant provisions, the procedure required to be followed would be as under : The assessee has to deposit a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order is passed, the assessee would be liable to pay interest on the amount payable from the first date of the succeeding month of the finalisation of provisional assessment. 7.6 As already observed above, in this case, there is no final assessment order at all. This situation is covered by the decision of Hon ble High Court of Bombay in the case of Commissioner Central Excise, Nagpur v. ISPAT Industries Ltd. - 2010 (259) E.L.T. 662 (Bom.) wherein Hon ble High Court took the view that if differential duty was paid even before final assessment was made, the assessee is not liable to pay interest. This decision was upheld by Hon ble Supreme Court when SLP was filed by Revenue against this decision [2014 (30) E.L.T. A70 (S.C.)]. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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