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TMI Blog2018 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Steel The said HCFC is cleared at the rate of 110% of the cost of production; as the cost of production is not known at the time of the clearance and the same would be known at he time of finalization of accounts, the Respondent opted for provisional assessment which was accepted by the department and assessment were made provisionally. For the year 2008-2009, the Respondent submitted the copies of the audited balance sheet, CAS-4 certificates and the related information required for the finalization of provisional assessments, for the period on 01.01.2009; based upon the same and documents submitted, Adjudicating Authority by Order-in-Original finalized provisional assessment and wherein differential duty due was demanded, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellate authority should have contested the matter and should not have remitted it to the lower authorities. 3. Ld. Counsel appearing for the Respondent submits that identical issue has been decided by the Hon'ble High Court of Karnataka in the case of Toyoto Kirloskar Auto Pans Pvt. Ltd., 2012 (276) E.L.T. 332 (Kara) and in paragraph 8 held that adjustment of excess payment is possible. He submits that similar issue has been expressed by the Tribunal in the case of Mercedes Benz Pvt. Ltd., 2017 (347) E.L.T. 646 (Tri. - Mumbai) by following the law as laid down by the Hon'ble High Court of Karnataka, he produces the copies of the same. 4. On careful consideration of the submission made and perusal of records, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the form prescribed by notification by the Board with such surely 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 Jif, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of dilly provisionally assessed. (3) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, if such amount is relatable to- (a) the duly of excise paid by the manufacture, if he had not passed on the incidence of such duly to any other person; (b) the duty excise borne by the buyer, if he had not passed on he incidence of such duty to any other person. 7. A perusal of the aforesaid provision makes it clear that, where the assessee is unable to determine the value of excisable goods or determine the rate of duly applicable thereto, he may request the competent authority as provided in the said provision, to permit him to pay the duty on provisional basis at such rate or on such value as may be specified by him. If the authority is satisfied, he may pass an order permitting such payment and taking all necessary steps for pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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