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TMI Blog2015 (7) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. - Decided against assesssee. - Appeal Nos. E/40397 to 40403/2014 - Final Order No. 40721-40727/2015 - Dated:- 30-6-2015 - Hon ble Shri R. Periasami, Technical Member,J. For the Appellant : Shri Raghavan Ramabadran, Advocate For the Respondent : Shri B. Balamurugan, AC (AR) ORDER As the issues involved in all the seven appeals are common and arising out of a single OIA dt. 2.12.2013, all the appeals are taken up together for disposal. 2. The brief facts of the case are that appellant, a Public Sector Undertaking are manufacturers of Boiler Auxiliary products including Electrostatic Precipitator falling under Chapter Heading 84 of CETA 1985 and are registered with Central Excise and discharging duty on the final products. They opted for provisional assessment under Rule 7 of Central Excise rules due to price variation clause in the contract and variation of rate per Kg adopted on the estimated design value. On finalisation of the price, they have paid the differential duty on their own by raising the supplementary invoices on the goods already cleared before finalisation of assessment. Subsequently assessments were finalised by jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He relied on Hon ble Bombay High Court s order in the case of Ceat Ltd. Vs CCE - 2015 (317) ELT 192 (Bom.) wherein the Hon'ble High Court allowed the appeal on a similar issue and distinguished the Hon ble Supreme Court judgement in the case of SKF India Ltd. (supra) and the Tribunal s Larger Bench decision in the case of Cadbury India Ld. Vs CCE 2008 (232) ELT 224 (Tri.-LB). He submits that the Tribunal in the appellant s own case [BHEL Vs CCE Bhopal-2012 (275) ELT 614 (Tri.-Del.)] has dismissed their appeal by following the decision of Larger Bench and in the above case differential duty was paid only after finalisation of assessment and the said decision will not apply. He submits that since the Apex Court decision of SKF India Ltd. and the Larger Bench decision have been distinguished by the Hon ble Bombay High Court in the case of CEAT Ltd. (supra) the Tribunal s order in their own case is not applicable. In addition to above, he relied on the following case laws :- (i) Ispat Industries Ltd. Vs CCE Nagpur 2007 (290) ELT 280 (Tri.-Mum.) (ii) CCE Nagpur Vs Ispat Industries Ltd. 2010 (259) ELT 662 (Bom.) (iii) Tata Motors Ltd. Vs CCE Pune 2011 (269) ELT 415 (Tri.-Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of SKF India Ltd. is not applicable in their case. In this regard, I find that the Principal Bench of this Tribunal in the appellant s own case reported in BHEL Vs CCE Bhopal (supra), has discussed the identical issue in depth and held against the appellant. The relevant paragraphs of the said Principal Bench of the Tribunal decision are reproduced as under :- 11. As regards the merits of the case, it is the contention on behalf of the appellants that the case of the appellants is not covered by the decision of the Apex Court in the matter of Commissioner of Central Excise, Pune v. S.K.F. India Ltd. reported in 2009 (239) E.L.T. 385. According to the learned Advocate for the appellants, S.K.F. India Ltd. ruling is applicable only in cases where there is short-payment of duty which is recoverable under Section 11A and it would not apply to the differential duty recoverable under Rule 7(3) of the said Rules and the occasion to demand the duty would not arise unless the assessment is finalized. .... .... .... 16.?Placing reliance in the decision in the matter of S.K.F. India Ltd. it is submitted that though the decision does not deal with the issue of charging inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 37, such rules may provide for charging of interest on the differential amount of duty which becomes payable or refundable upon finalization of all or any class of provisional assessment. In other words, apart from generality of power enshrined under sub-section (1) of Section 37 of the said Act, sub-section (2)(ibb) of Section 37 specifically provides that the Rules may provide for charging interest on differential amount of duty becoming payable consequent to the finalization of provisional assessment. The provision of law comprised thereunder nowhere specifies such Rules shall restrict the levy of interest for the period consequent to finalization of the assessement. Rather it specifies that the Rules may provide for interest on the differential amount of duty becoming payable consequent upon the finalization of assessment. The expression becoming payable would obviously relate to the date on which the duty was required to be paid. Considering the provisions of Section 4 of the said Act, the duty becomes payable on each removal of the goods consequent to the manufacture thereof. Being so, the expression becomes payable under Section 37(2)(ibb) would relate to the date on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the above order, the principal Bench of this Tribunal has clearly explained at para 19 of the meaning of the expression the month for which such amount is determined mentioned in rule 7 (4) and held that the word used in the expression for it is clearly refers to the month for which amount is determined pursuant to finalisation of assessment and held that interest liability would commence from the month succeeding the day on which duty was due and payable in relation to the goods cleared. It was also explained if the appellant contention that interest is payable after finalisation is accepted, then the expression used in rule 7 (4) would been in instead of for , with reference to the month following the day on which duty was due. In the present case also LAA at para-8 has also discussed this particular expression for which the said amount is determined used in the Rule 7 (4) of CER. The appellant placing reliance on Hon ble Bombay High Court s decision in the case of CEAT Ltd. (supra) and other decisions in the case of Ispat Industries Ltd. and TATA Motors Ltd. (supra) is not relevant in view of appellant s own case wherein the Principal bench has already has decided the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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