Custom, Excise & Service Tax Tribunal
Cce Pune vs Tata Motors Ltd on 25 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/208, 209, 210 and 211/12 Mum
E/CO/64, 65, 66 and 67/12
(Arising out of Order-in-Appeal No. PI/RKS/155/2011 dated 09.11.2011 passed by the Commissioner of Central Excise (Appeals), Pune.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune
:
Appellant
Versus
Tata Motors Ltd.
Respondent
Appearance Ms. D.M. Durando, Dy. Commissioner (A.R.) for Appellants Shri V. Sridhar, Sr. Advocate for Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 25.05.2012 Date of Decision : 25.05.2012 ORDER NO.
Per : Ashok Jindal These appeals are filed by the Revenue against the impugned order passed by the Commissioner (Appeals) wherein the demand confirmed by the adjudication order was set aside. The respondents are also filed Cross Objection to the appeals.
2. As the issue involved in these appeals is common, therefore all the appeals are disposed of by a common order.
3. The short issue involved in the matter is that in the case of provisional assessment, whether the respondents are liable to pay interest on finalization of the assessment if the differential duty has been paid before the finalization of the assessment. In the impugned order the Commissioner (Appeals) has observed as under:-
10. On perusal of the above case laws, I find that the issue involved in the subject appeal is squarely covered by the aforesaid case laws. I find that in the subject case the appellants have paid the differential duty payable on finalization of provisional assessment even prior to issue of Order of finalization of provisional assessment, and hence the ratio of the CESTAT Order dated 15.11.2006, in the case of Ispat Industries Limited Vs. CCE, Nagpur, as reported in 2007 (209) ELT 280 (Tri-Mumbai), wherein it was held by the Hon'ble Tribunal that, since the differential duty was paid even before the finalization of provisional assessments, the appellants are not liable to pay any interest, is fully applicable to the facts of this case. I further find that Commissioner of Central Excise, Nagpur, had filed an appeal before the Hon'ble Bombay High Court (Nagpur Bench), against the said CESTAT Order, which was dismissed by the Hon'ble Bombay High Court, vide their Order & judgement dated 12.10.2010, as reported in 2010 (259) ELT (Bom.). Subsequently, the department filed an SLP before the Hon'ble Supreme Court, against the said judgment dated 12.10.2010. However, the SLP filed by the Department has been dismissed by the Hon'ble Supreme Court, vide their Order dated 04.07.2011, as communicated by the Joint Commissioner, Central Excise & Customs, Nagpur, vide his letter dated 21.10.2011, as referred to in para 6.3 above. Consequently, the Order & Judgment dated 12.10.2010, passed by the Hon'ble Bombay High Court (Nagpur Bench) in the case of M/s Ispat Industries Limited (supra) has become final and hence is binding on the jurisdictional adjudicating and appellate authorities.
10.1 I further find that the Hon'ble CESTAT, Mumbai, vide their Orders dated 21.02.2008 and 17.03.2011, in the appellants own case relating to provisional assessments for the earlier period, have decided the said issue in their favour, after relying upon the judgment of Hon'ble Bombay High Court, in the case of Ispat Industries Limited (supra).
4. As the Honble High Court of Bombay in the case of Ispat Industries Ltd. (supra) held that the assessee is not liable to pay interest on the differential duty paid by them before the finalization of the provisional assessment. The same view has been confirmed by the Honble Apex Court in the SLP filed by the Revenue against the decision of Honble High Court in the case of Ispat Industries Ltd. (supra). In view of these circumstances, I do not find any infirmity in the impugned order and the same is upheld.
5. The appeals filed by the Revenue are dismissed. Cross Objections are also disposed of in the above terms (Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 4