Custom, Excise & Service Tax Tribunal
Hindustan Petroleum Corporation Ltd vs Visakhapatnam-I on 4 March, 2020
(1)
Appeal No. E/1412/2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Division Bench
Court - I
Excise Appeal No. 1412 of 2012
(Arising out of Order-in-Appeal No.13/2012 (V-I) CE dt.06.03.2012 passed by CCCE & ST
(Appeals), Visakhapatnam)
Hindustan Petroleum Corporation Ltd
Visakh Refinery, Malkapuram,
Visakhapatnam - 530 011 ......Appellant
VERSUS
Commissioner of Customs, Central Excise
& Service Tax, Visakhapatnam - I
Port Area, Visakhapatnam,
......Respondent
Andhra Pradesh - 530 035 Appearance Shri C. Sumanth, Advocate for the appellant. Shri V.R. Pavan Kumar, Authorized Representative for the respondent.
Coram:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) FINAL ORDER No. A/30781/2020 Date of Hearing: 04.03.2020 Date of Decision: 04.03.2020 [Order per: ANIL CHOUDHARY]
1. Heard the parties.
2. The issue involved in this appeal is whether in case of provisional assessment made initially at the time of clearance of goods, and upon finalisation, additional duty is found payable, whether interest shall be payable from the date of finalisation of the provisional assessment or from the date/ month when the duty became due with respect to the goods cleared.
3. Having considered the contentions, we find that this issue is no longer res integra and has been decided by the Larger Bench of the Hon'ble (2) Appeal No. E/1412/2012 Supreme Court in the case of Steel Authority of India Limited [2019 (366) ELT 769 (SC)] in favour of the revenue and against the assessee. The Hon'ble Supreme Court has observed in Para 63 as follows:
"63. We are of the view that the reasoning of this Court in the order referring the cases to us (to this Bench) that for the purpose of Section 11AB, the expression "ought to have been paid" would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month. Interpreting the words in the manner contemplated by the Bench which referred the matter would result in doing violence to the provisions of the Act and the Rules which we have interpreted. We have already noted that when an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value consequently, the duty and interest dates back to the month "for which" the duty is determined. Duty and interest is not paid with reference to the month in which final assessment is made. In fact, any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions. It may be true that the differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only prospective operation. It is to have retrospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid. We would think that while the principle that the value of the goods at the time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal. The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, section 11A and section 11AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. We would concur with the views expressed in SKF case(supra) and International Auto (supra). We find no merit in the appeals. The appeals will stand dismissed."
4. Accordingly, following the judgment of the Larger Bench of the Hon'ble Supreme Court, we dismiss this appeal.
(Dictated and pronounced in open court) (ANIL CHOUDHARY) MEMBER (JUDICIAL) (P. VENKATA SUBBA RAO) MEMBER (TECHNICAL) Veda