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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 ..... ri B. L. Narasimhan, Advocate for the appellant. Shri Sanjay Jain, DR for the respondent. ORDER Per: V. Padmanabhan: The present appeal is directed against the order of the Commissioner (Appeals), Jaipur. The appellant is a manufacturer of lead and zinc concentrate falling under chapter 26 of the Central Excise Tariff. The appellants are transferring their final products to their own smelter plants. For such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in proper form with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the 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, af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer, if he had not passed on the incidence of such duty to any other person, or (b) The duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. This rule governs the grant and finalisation of provisional assessment. Sub-rule 7(3) casts the responsibility on the Assistant Commissioner to pass order for final assessment after the relevant information is received which is required 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the duty payable in respect of all the goods and the duty paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest. 9. In the instant case, admittedly for certain items the Adjudicating Authority has held the short fall in payment of duty after the final assessment order as ₹ 10,63,417/-. In respect of other items, the assessee has paid ₹ 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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