Custom, Excise & Service Tax Tribunal
Bharat Electronics Limited vs Commissioner Of Central Excise, ... on 4 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/20556/2017-SM [Arising out of Order-in-Appeal Nos. 26 & 27/2017-LTU dated 03/02/2017 passed by the Commissioner, LTU, Bangalore] Bharat Electronics Limited Jalahalli, Bangalore 560 013 Karnataka Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-LTU 100 Ft Ring Road, JSS Towers, Banashankari-III Stage, Bangalore - 560 085 Karnataka Respondent(s)
Appearance:
Shri S. Narayana, DGM For the Appellant Shri N. Jagadish, Superintendent (AR) For the Respondent Date of Hearing: 04/01/2018 Date of Decision: 04/01/2018 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20022 / 2018 Per : S.S GARG 1.1. The present appeal is directed against the impugned order dated 03.02.2017 passed by the Commissioner (Appeals) whereby the appeal of the appellant has been rejected by the Commissioner. Briefly the facts of the present case are that the appellants are engaged in the manufacture of Tablet PCs, additional Battery Packs, Solar Chargers etc. They obtained an Order for supply of Tablet PCs, Battery Packs and Solar Chargers from the Ministry of Rural Development, Government of India, vide Purchase Order dt. 10.06.2011 and 23.01.2012. In the said Purchase Orders the indicative unit prices were follows Tablet PC (Rs. 3308/- per piece), Additional Battery Pack (Rs. 750/- per piece) and Solar Charger (Rs. 1950/- per piece). As these were indicative prices, the appellant requested the Assistant Commissioner of Central Excise, LTU, Bangalore, for Provisional Assessment, in terms of Rule 7 of Central Excise Rules, 2002. The Provisional Assessments were permitted for the period July 2011 to May 2012.
1.2. Subsequently the appellant, vide letters dt. 16.05.2014 and 25.08.2014, informed the Department that the Ministry of Rural Development (Economic & Monitoring Wing) vide letter dt. 19.03.2013, has revised the price for the Tablet PCs and other accessories as Rs. 365.31 Crore for Six lakh Tablet PCs, Rs. 6 Lakh for Additional Battery Pack and 60000 Nos. of Solar Chargers. Applying the price arrived at by the Chief Advisor (Cost) to the 6.4 Lakh Tablet PCs, 6.4 Lakh Additional Battery Packs and 60000 Nos. of Solar Chargers, the total cost/price comes to Rs. 388.94 Crores. However, the final price was to be paid to the appellant after approval of EFC. The appellant further informed that the Ministry had confirmed the final price of the subject goods to be Rs. 388.94 Crores.
1.3. Subsequent to the price confirmation, the appellant worked out the differential duties on the increased value and on 30.03.2014, had paid Rs. 5,77,36,546/- (Rupees Five Crore Seventy Seven Lakhs Thirty Six Thousand Five Hundred and Forty Six only), on Tablet PCs and Additional Battery Packs, cleared by them during the period July 2011 to May 2012 (for 1st Provisional Assessment) towards the short paid duty. On 30.03.2014, they also paid the differential duty of Rs. 45,15,472/- (Rupees Forty Five Lakhs Fifteen Thousand Four Hundred and Seventy Two only) on Tablet PCs and Additional Battery Packs, cleared during the period March 2012 to May 2012 (for 2nd Provisional Assessment).
1.4. The Assistant Commissioner of the Central Excise vide two Orders-in-Original finalized the provisional assessment and appropriated the amount paid and confirmed the demand of interest under Rule 7(4) of the Central Excise Rules read with Section 11AA of Central Excise Act. Aggrieved by the said order, appellant filed appeal before the Commissioner (Appeals) but the Commissioner (Appeals) has rejected the appeal of the appellant. Hence the present appeal.
2. Heard both the parties and perused the records.
3. Shri S. Narayana DGM appeared on behalf of the appellant and submitted that the impugned order is contrary to the binding judicial precedent on the same issue. He further submitted that there is no dispute regarding the payment of differential duty amount. He further submitted that subsequent to the finalization of the prices, the appellant on their own calculated the differential duty and paid the same on 30.03.2014 whereas the provisional assessments were finalized in August 2015. He further submitted that the interest is not applicable in the instant case in view of the judgment of the Bombay High Court in the case of CEAT Limited Vs. The Commissioner of Central Excise & Customs, Nashik 2015 (2) TMI 794 Bombay High Court. He further submitted that the Revenue filed appeal against the decision of the Bombay High Court before the Honle Supreme Court and the Honble Supreme Court vide its Order dated 29.01.2016 dismissed the SLP of the Department. He also submitted that the Division Bench of the Bombay Tribunal in the case of CEAT Ltd. Vs. CCE, Nashik - 2017-TIOL-1143-CESTAT-MUM. has relied upon the earlier decision of the CEAT and has held that the issue has been decided in the appellants own case by the Bombay High Court holding that interest is not chargeable on the differential duty paid before finalization of assessment.
4. On the other hand the learned AR reiterated the findings of the impugned order.
5. After considering the submissions of both the parties, I find that the issue is no more res integra and has been settled by the Honble Supreme Court in the case of Commissioner V. CEAT Limited 2016 (342) E.L.T. A181 (S.C) wherein the Supreme Court upheld the Bombay High Court decision which held that interest is not required to be paid on differential duty if the same is paid before finalization of assessment. By following the ratio of the decision of the Apex Court, I allow the appeal by setting aside the impugned order with consequential relief, if any.
(Operative portion of the Order was pronounced in Open Court on 04/01/2018) (S.S GARG) JUDICIAL MEMBER iss...