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TMI Blog2023 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... being taken by the revenue after having denied the permission to make assessments provisional to demand the duty in respect of the clearances made within the prescribed time limit as per Section 11A. In case the submission of the revenue is agreed to, appellant would without even a notice issued under Section 11A within the prescribed time limit whatsoever payments made by the appellant on finalization of assessment could not have been recovered. Provisional assessment is a facility to the revenue to keep the assessments alive and not to the person claiming for provisional assessment which is on account of the reason that the correct value for rate could not have been determined. The issue involved in the present case has become inconsequential. The counsel for the appellant submits that they have from the date of clearance in 2017, in all the cases, the case, determined the final value and paid the differential duty along with the interest as has been held by the Hon ble Apex Court in BHARAT HEAVY ELECTRICALS LTD. VERSUS COMMR. OF CUS. C. EX., KANPUR [ 2023 (2) TMI 181 - SUPREME COURT] . On payment of differential duty along with interest on finalization of value subsequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment of that month. This order has been upheld by the impugned order. Hence, this appeal. 3.1 We have heard Shri Z.U. Alvi learned Counsel appearing for the appellant and Shri Santosh Kumar learned Authorised Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 We find in the present case that the period of dispute is January to June, 2017 and the entire assessment was for the period even if provisional during that period would have been finalized by 2021 as submitted by the Counsel, whatsoever differential duty was payable has been paid that being so the entire proceedings whether the assessment were provisional could have been made provisional or not become the theoretical exercise without having any implementation by the revenue. 4.3 In the case of the appellant it is admitted fact that the contract and supplies made against the said contract ar5e spread over a large period of time spanning more than year and the prices of the goods supplied in terms of these contracts cannot be determined on the monthly basis or on the basis of financial year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is determined, till the date of refund. These provisions contained in sub-rules (4) and (5) of Rule 7 clearly indicate that the final assessments are required to be made monthwise. Rule 8 which deals with the manner of payment of duty provides that the duty on the goods removed from the factory/warehouse during a month shall be paid by the fifth day of the following month. Rule 12 requires every assessee to submit a monthly return of production and removal of goods. From these provisions, it is eloquently clear that an assessee has to file return and pay duty monthwise and the assessing authority is also required to finalize the assessee s provisional assessment monthwise. In a given calendar month, the assessee may have cleared several consignments of excisable goods on payment of duty. In respect of some of these, the assessing authority may find excess payment of duty upon finalisation of provisional assessments. In respect of other transactions of the same month, short-payment of duty may be found upon finalisation of provisional assessments of the monthly return. Adjustment of the excess payment of duty against the short-payment of duty for the period covered by the same retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l adjustment in one go for the entire financial year. They can claim adjustment only within the period covered by each return. We must hasten to add that even such adjustment cannot be allowed unless the assessee succeeds in surmounting the bar of unjust enrichment. 4.5 In case of Steel Authority of India Linited [2019 (366) ELT 769 (SC)] a three judges bench of Hon ble Supreme Court has observed as follows: 18. The scheme of the rules further is that assessment is to be done by the assessee itself by way of self-assessment and the duty paid by the due date (see Rule 6). What is to happen when the asssessee is confronted with a situation when it is unable to determine the value of the goods or find the rate of duty. Rule 7 provides the solution. The assessee can thereunder apply giving reasons and seeking permission to make a provisional assessment. The officer may, grant such permission. Thereupon, duty is payable on a provisional basis. The value or the rate would be indicated by the officer in the order permitting such provisional assessment. This is however made subject to the assessee executing a bond binding the assessee to pay the difference between the duty as paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the assessee. Before the Bench which referred the matters to this Bench however, the appellants have made it clear that they are indeed liable to pay the differential duty. We have noticed that stand which has been expressly recorded by this Court in paragraphs 21-22 of the reference order. 59. We are here concerned in these cases with one of the ingredients of assessment, namely, valuation. There is no dispute regarding the quantity removed. There is no issue relating to rate of duty. The dispute is relating to the correct value. To appreciate it better, let us take an example of an assessee who deliberately undervalues the goods which he removed. This results in assessee arriving at an amount which would not be the correct amount. He pays this incorrectly assessed amount. Would it be a case of short-levy or short payment? If short-levy is to be understood as confined to cases where the assessment is not the full assessment, taking into account the parameters involved correctly, namely, rate of duty, valuation and quantity it could be classified as a case of short-levy as one of the components of proper assessment namely, valuation has been incorrectly arrived at. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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