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TMI Blog2016 (6) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... h transfers, the value to be adopted for payment of excise duty has to be determined as per Costing Standards CAS-4. To facilitate such determination of the value, provisional assessment was resorted to under Rule 7 of the Central Excise Rule. Dispute arose at the time of finalisation of the provisional assessments. The original authority concluded in his order dated 05.03.2007 that the appellant paid excess duty during the period December, 2005 to March, 2006 and had short paid duty period from May 2005 to November, 2005. He took the view that the short paid duty of Rs. 37,19,321/- is recoverable along with interest from the appellant. But he denied the adjustment of the excess paid duty with short paid duty. When this order was challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisional assessed. (3) The Assistant Commissioner of Central Excise or the Commissioner of Central Excise as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1): Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for finalising the same. The other sub-rules provide for payment of interest if excess duty becomes payable to the Central Government and also safeguards the right of the assessee to claim refund in case any amount is found paid in excess. However, this right is subject to the applicability of principle of unjust enrichment. Rule 7 nowhere talks about adjustment of excess duty paid towards the duty short paid. The view held by the Larger Bench in the Excel Rubber Limited case is that before grant of adjustment the authority finalising the provisional assessment will have to ascertain whether such excess amount is to be actually refunded or is liable either wholly or partly to be credited to the Consumer Welfare Fund and only thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items, the assessee has paid Rs. 1,77,20,157/- in excess. But before imposing interest, the authority should have deducted the short fall in the excess payment made. If there is no short fall in payment of duty, payment of interest does not arise. They have treated the duty payable under two categories. It was found in respect of some items the duty payable after the final order is more than what was paid under provisional assessment. The approach of the authorities in this regard is erroneous, unwarranted and unsupported by any statutory provision. If we keep in mind the principle underlying the provisions, it is only when the duty is due and it is not paid within the stipulated time and the duty is paid thereafter, in order to compensate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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