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TMI Blog2005 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... advance by the assessee, exists in the Central Excise Act. Rather duty is payable by an assessee at the time of clearance of the goods from the factory. The Central Excise Act only speaks of provisional assessment under Rule 9B which can be claimed by the assessee or adopted by the deptt., when there is dispute regarding classification of the goods, and the correct Tariff rate of duty leviable on these goods or, where the clearance of the goods has to be made by an assessee under an agreement containing price variation clause. It is only on finalisation of that provisional assessment, the excess found duty, if any is required to be refunded to the assessees by the department and even for that refund period of three months has been allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2005 (179) E.L.T. 15 and by the Tribunal in the case of Hindustan Motors v. CCE, Calcutta reported in [2003 (155) E.L.T. 306 (Tri.) = 2003 (56) RLT 192]. None has come present on behalf of the appellants before us. However, the ld. Counsel has assisted the Bench. We have heard the ld, SDR and the Counsel. 2. In C.E., Hyderabad v. ITC Ltd. (supra), there was delayed refund of pre-deposit and interest at the rate more than 12% was allowed by the Tribunal. The Apex Court after referring and making the draft circular submitted by the Revenue regarding payment of interest, as part of the order, upheld the payment of interest to the assessee on delayed payment of pre-deposit, but reduced the interest to 12%. In that case, payment of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy CIT, the Hon'ble Madhya Pradesh High Court affirmed the order. When the matter was taken to the Apex Court in Civil Appeal No. 2053 of 2000, the Court dismissed the same by observing that since the Revenue did not challenge the correctness two decisions of the Gujarat High Court (supra), the principle laid down therein was rightly followed and the High Court correctly answered the reference in affirmative. The Apex Court itself did not examine the merit of the issue regarding grant of interest on interest to an assessee under Section 214 of the Income Tax Act or any other Act. 5. However, the view taken up by the Gujarat High Court has not been approved of endorsed by the Hon'ble Bombay High Court in the case of Sandvik As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But no such provision regarding payment of duty in advance by the assessee, exists in the Central Excise Act. Rather duty is payable by an assessee at the time of clearance of the goods from the factory. The Central Excise Act only speaks of provisional assessment under Rule 9B which can be claimed by the assessee or adopted by the deptt., when there is dispute regarding classification of the goods, and the correct Tariff rate of duty leviable on these goods or, where the clearance of the goods has to be made by an assessee under an agreement containing price variation clause. It is only on finalisation of that provisional assessment, the excess found duty, if any is required to be refunded to the assessees by the department and even for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no power to award interest. 8. In the light of what has been discussed above, on the basis of the above referred two judgments of the Gujarat High Court, which are under different Tax statute, interest on delayed payment of interest, cannot be held to be permissible under the Central Excise Act and the Rules made thereunder, for want of any specific provision in the Act or the Rules. Therefore, the Tribunal has no power to award such a interest to the assessee. The law laid down in Hindustan Motors v. CCE (supra), to the contrary, being not a good law, stands overruled. The reference stands accordingly answered. 9. With the consent of both the sides, we dispose of the appeal itself as no other issue is involved therein. In view of our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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