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TMI Blog2019 (12) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ed fact that duty of ₹ 4,42,65,588/- has been paid by the appellant in excess for the period from April 2016 to June, 2016 and September 2016 to March, 2016. However, there is short payment of duty of ₹ 1,20,75,019/- during July and August, 2016. In view of above provision, the appellant was entitled for refund of ₹ 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 - 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. 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. Revenue neutrality - HELD THAT:- It has already been held in the case of COMMISSIONER OF CENTRAL EXCISE, CUSTOMS SERVICE TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by Superintendent of Central Excise and Service Tax Range XII, Udaipur vide his verification report dated 24.10.2017. The Department however observed that during the period April, 2016 to June, 2016 and September, 2016 to March 2017 the concentrate has been cleared by the appellant at the rate of ₹ 54,100/- per MT. However, during the period July and August, 2016, the concentrate has been cleared at the rate of ₹ 46,100/- per MT. Department vide Order-in-Original No. 27/2016 dated 17.11.2017 while finalising the provisional assessment for the year 2016-17 ordered that since the appellant has cleared goods during July and August, 2016 at lower rate, as such, he has short paid the Central Excise duty of ₹ 1,20,75,019/-. The same was held recoverable under Rule 7(3) of Central Excise Rules, 2002 alongwith interest under Rule 7(4) thereof. Being aggrieved, the Appeal was preferred by the appellant. However, the same was rejected vide Order-in-Appeal No. 1180 dated 25.10.2018. Being aggrieved the appellant is before this Tribunal. 2. We have heard Shri Amit Jain, learned Advocate for the Appellant and Shri H.C. Saini, learned Authorised Representative for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional 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 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 (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 [Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 assessment which is to be taken into consideration. If after taking into 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, men for the short fall in payment of duty, the assessee is liable to pay interest. 8. In the present case, it is an admitted fact that duty of ₹ 4,42,65,588/- has been paid by the appellant in excess for the period from April 2016 to June, 2016 and September 2016 to March, 2016. However, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The argument of the Department that sister concern has already filed the credit does not extend any benefit to the Department, in view of the acknowledgment on part of the appellant to forgo his right of claiming refund of the said excess duty paid by him. The situation, therefore, is nothing but revenue neutral situation as has been clarified. It has already been held in the case of C.C.E., Vapi Vs. Tarapur Grease India Pvt. Ltd. reported at 2016 (334) E.L.T. 416 (Bom.) that once the goods have been delivered only at the factories of the assessee from the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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