9911796707
TMI Blog2019 (12) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... actory gate sale price was available with the appellant, they were determining the assessable value in terms of Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Accordingly, vide letter dated 27.06.2017 the appellant applied for provisional assessment under Rule 7 of Central Excise Rules, 2002. The details showing the clearances made to the sister unit for captive consumption alongwith the details of duty paid by them for the financial year 2016-17 alongwith CAS-4 for arriving at the cost of concentrate was submitted by the appellant vide letter dated 27.06.2017 which was got duly certified from their cost accountant. The assessable value was reported to be Rs. 50,420MT (basic cost plus 10% normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impressed upon that in the cases of provisional assessment if duty is found short paid for a particular month and the same is required to be adjusted against the excess duty paid for rest of the financial year, such adjustment cannot be denied for the reason that the sister unit has availed cenvat credit of such duty. It is impressed upon that due to this reason the appellant has not claimed the refund to which it was otherwise entitled to. Reliance upon the decision of Hindustan Zinc Ltd. Vs. C.C.E., Jaipur reported at 2016 (336) E.L.T. 328 (Tri.-Delhi) and Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. C.C.E., L.T.U., Bangalore reported at 2012 (276) E.L.T. 332 (Kar.) has been placed. It is further submitted that demand is otherwise not susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e form prescribed by notification by the Board 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 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, 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 ..... 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." 6. 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 duty 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 payment of any short fall in the duty payable at the end of assessment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, there is short payment of duty of Rs. 1,20,75,019/- during July and August, 2016. In view of above provision, the appellant was entitled for refund of Rs. 4,42,65,588/-. This is also an admitted fact that the sister concerns (smelter units of the appellants) to whom the goods were supplied have already filed the cenvat credit in respect of the duty paid on the said goods. The refund has rightly not been claimed by the appellant. In view of these admissions where the goods are supplied to the sister concern for captive consumption, the adjustments of excess duty towards short payment in the subsequent period should not have been denied. This is already been held by this Tribunal in appellant's own case Hindustan Zinc Ltd. Vs. CCE, Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee during that particular financial year. It is because of this reason that if the short fall during a particular period is required to be paid by the assessee and the excess payment made during another periods falling in the same financial year is to be rejected. The entire purpose of keeping the assessment provisional becomes a futile exercise. Such excess duty paid has to be adjusted against the short paid duty during any period of the said financial year. 10. In the present case, the net duty is for the financial year 2016-17 as was paid on provisional assessment basis. The short payment for two months of the same year is, therefore, to be adjusted against the excess paid during the another period of the same financial year. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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