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TMI Blog2016 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - Excise Appeal No. 3453 of 2006 and Excise Appeal No. 38 of 2008-Ex (DB) - Final Order Nos. 51928 - 51929 / 2016 - Dated:- 2-6-2016 - MS. ARCHANA WADHWA, MEMBER (JUDICIAL) AND MR. V. PADMANABHAN, MEMBER (TECHNICAL) For the Petitioner : None For the Respondent : Shri Govind Dixit, DR ORDER Per: V. Padmanabhan: The appellant is engaged in the manufacture of man-made blended yarn and fabrics. Some quantity of these goods are sold by them to their sister concern. The assessable value for such clearances to sister concern is to be determined in terms of Rule 8 of the Central Excise Valuation Rules, 2000, 115%/ 110% of the cost of production ascertained on the basis of costing standard CAS-4. For this purpose clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned at the time of finalisation of provisional assessment. This matter in the present appeal was considered alongwith two other matters involving the same question, by the Larger Bench who decided the issue in the case of Excel Rubber Ltd., vs. CCE, Hyderabad 2011 (268) ELT 419 (Tri. LB). The operative part of the decision of the Larger Bench is extracted below: 50. The fallout of the above discussion is that once the authority on finalisation of assessment finds any amount of money having been paid in excess of the duty liability ascertained in the final assessment, the excess amount so ascertained would become refundable to the assessee. Such excess amount can certainly be adjusted towards any other duty liability of such assessee u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made during provisional assessment can be adjusted against the short payments made under the same provisional assessment. 5. Ld. DR reiterated the Larger Bench decision in the case of Excel Rubber Limited and argued that no such adjustment can be granted at the time of finalisation of provisional assessment without putting the excess amounts paid to the test of unjust enrichment. 6. Provisional assessment is ordered under Rule 7 of the Central Excise Rules. For ready reference the same is reproduced below: RULE 7. Provisional assessment .-(1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-rule (3), at the rate of twenty four percent per annum from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof. (5) Where the assessee is entitled to a refund consequent to order for final assessment under sub-rule (3), subject to sub-rule (6) there shall be paid an interest on such refund at the rate of fifteen percent per annum from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Consumer Welfare Fund: Provided the amount of refund, instead of being credit to the Fund, be paid to the applicant, if such amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant wording of the decision is as under: 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty in the form of interest. The entire approach of the department is unreasonable, contrary to the scheme of the Act and negatives the principle underlying these provisions. Therefore, all the authorities were in error in levying and upholding the levy of interest. In that view of the matter, we pass the following . Hon ble High Court thus held that when there is provisional assessment, the same is applicable to the entirety of the goods and to arrive at final duty liability, adjustments of duty excess paid to the short payment have to be made. 8. The decision of the Honble High Court has been followed by CESTAT in the case of Hindustan Zinc Limited and becomes the precedent for this Bench to follow. 9. In conclusion, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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