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TMI Blog2024 (6) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment is final and any duty not paid or short-paid is liable to be recovered by recourse to section 11A of Central Excise Act, 1944. The Tribunal, in FINOLEX CABLES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE I [ 2023 (12) TMI 169 - CESTAT MUMBAI] of Commissioner of Central Excise (Appeals), Pune I for the immediately preceding period, has held that ' in the absence of exercise of option by the assessee for provisional assessment , it is not open to central excise authorities to deem the clearances to have been provisional and to proceed with final assessment for each year.' The impugned order flies in the face of the law and is set aside to allow the appeal of M/s Finolex Cables Ltd. For the same reason the appeal of Commissioner of Central Excise, Pune I is dismissed. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Rajesh Ostwal , Advocate for the assesse-appellant Shri P K Acharya , Superintendent ( AR ) for Revenue ORDER PER : C J MATHEW M/s Finolex Cables Ltd, aggrieved by the direction of Assistant Commissioner of Central Excise, Pune III dated 17th January 2013 that assessment of goods cleared from their P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. In a situation where it is not possible to comply with the provisions of Rule 6 of the Rules, the available option is resorting to Rule 7 of the Rules. Thus, under the available provisions an assessee has to decide as to whether duty payable on the goods is to be determined under Rule 6 or Rule 7. It is not the option available to the assessee not to resort to either of the rules. In a situation where the assessee fails to opt for the said option the competent authority can take the decision in the interest of revenue. As such the argument advanced by the Appellants is not valid. In the instant case the Appellants should have opted for the provisional assessment as per Rule 7 of Rules and submit the cost of subject goods by submitting CAS-4 at the end of financial year, on the basis of audited balance sheet of that particular financial year. However, the Appellants have refrained from doing so in spite of being pointed out by the jurisdictional range superintendent. An officer who is competent to issue an order on the request of an assessee is also competent to issue an order on his own. I do not find any infirmity in the Assistant Commissioner issuing the Provisional Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m opting for the Provisional Assessment even when the goods cannot be finally assessed at the time of clearance thereof, the correct action is not ordering provisional assessment suo motu but to call for the records/ information for issuance of the demand of differential duty as clarified by the Board. I thus find that the Adjudicating Authority has erred in Provisional Assessment of his own assertion and the argument advanced by the Appellants is valid to that extent. 4. Learned Counsel for appellant, M/s Finolex Cables Ltd, contends that the finding supra is incorrect as the express provision in law precludes unilateral action by jurisdictional central excise authorities. He intimated that identical impediment at the instance of jurisdictional authorities for earlier periods had either been overruled at the stage of the first appellate authority and appeal of jurisdictional Commissioner of Central Excise thereafter dismissed by the Tribunal or the upholding thereof in appeal set aside by the Tribunal. We have heard Learned Authorized Representative at length. 5. We find that the impugned order has set out the issue in dispute correctly but has gone on to find that the lack of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee shall be liable to pay interest on any amount paid or payable to the Central Government, consequent to order for final assessment under sub-rule (3), at the rate specified by the Central Government by notification issued under section 11AA of the Act from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof. (5) Where the assesse is entitled to a refund consequent to order for final assessment under sub-rule (3), subject to sub-rule (6), there shall be paid an interest on such refund at the rate specified by the Central Government by notification issued under section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund : Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) the duty of excise paid by the manufacturer, 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 inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional authority to determine short-payment of duty. No such allegation of resort to recovery is on record. In such circumstances, the submission of Learned Authorized Representative of motivated resistance to resort to rule 7 of Central Excise Rules, 2002 on the part of appellant is rendered a non-starter. 7. The Tribunal, in decision [ final order no. A/87174/2023 dated 30th November 2023 ] disposing off appeal [ excise appeal no. 1974 of 2012 ] against order [ order-in-appeal no. P-I/MMD/184/2012 dated 27th September 2012 ] of Commissioner of Central Excise (Appeals), Pune I for the immediately preceding period, has held that 5. Learned Counsel for the appellant submits that identical issue had been taken up and disposed off, vide final order no. A/85967/2022 dated 23rd September 2022 of the Tribunal, while hearing excise appeal E/1540/2012 arising out of order order-in-appeal no. P-I/MMD/148/2012 dated 31st July 2012 of Commissioner of Central Excise (Appeals), Pune-I. It was pointed out that the said order of the Tribunal, pertaining to the period from 2005-06 and 2006-07 had held that 4.3 Undisputedly Appellants submitted the CAS-4 certificates along with their ER-1 retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l orders passed under subrule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation. 4.5 W have no quarrel with case laws relied upon by the revenue to the effect that assessment of the captively consumed goods needs to be done on the basis of CAS-4 certificate. It is also the case of the appellant that they made the assessment of the goods captively consumed in their sister concern on the basis of CAS-4 certificate, duly issued by the Cost Accountant. That being so the assessments made on the basis of the CAS-4 certificates as per these decision has to be treated as final. 4.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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