Custom, Excise & Service Tax Tribunal
M/S Raptakos Brett & Co. Ltd vs Commissioner Of Central Excise, ... on 2 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/25 to 27/07 (Arising out of Order-in-Appeal No. AT/601 to 603/M.III/2006 dated 6.10.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai-II). For approval and signature: Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri C.J. Mathew, Member (Technical) ======================================================
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 : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
======================================================
M/s Raptakos Brett & Co. Ltd.
Appellant
Vs.
Commissioner of Central Excise, Mumbai-III
Respondent
Appearance:
Shri S.S. Gupta, C.A.
for Appellant
Shri V.K. Shastri, AC (AR)
for Respondent
CORAM:
SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL)
SHRI C.J. MATHEW, MEMBER (TECHNICAL)
Date of Hearing: 02.11.2015
Date of Decision: 02.11.2015
ORDER NO.
Per: M.V. Ravindran
All these three appeals are directed against Order-in-Appeal No. AT/601 to 603/M.III/2006 dated 6.10.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai-II.
2. Heard both sides and perused the records.
3. The issue involved in brief is that the appellant herein claimed certain abatements like, trade discount, free bonus, quantity discount, free replacement of breakages, freight, octroi and insurance, interest on receivables and turnover tax for arriving at assessable value. As the exact quantum of the admissible deductions could be decided only after the finalization of the accounts, appellant sought for provisional assessment. On submission of relevant information along with C.A. certificate, the lower authorities finalized the provisional assessment for the period 2001-02, 2002-03 and 2003-04. The lower authorities did not accept the contention of the appellant that the assessments wherein there was short payment of duty should be adjusted towards the duty where the appellant had paid excess duty. Provisions of Rule 9(B)(5) of the Central Excise Rules were invoked to hold against the appellant that is to say they were directed to file an application for refund of the amount which has been paid excess in the provisional assessment.
4. The learned Counsel appearing on behalf of the appellants submits that in the appellants own case for the earlier period, this Bench vide Final Order No. A/1414-1415/14/SMB/C-IV dated 3.11.2014 held in favour of the appellant relying upon the judgment of the Tribunal in the case of BSNL Ltd. 2014-TIOL-1410-CESTAT-DEL-and judgment of Honble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts P. Ltd. 2012-TIOL-10-HC-KAR-CX. He produced a copy of the Tribunals order as reported at 2015-TIOL-1848-CESTAT-MAD.
5. On perusal of the records and the judgment in the appellants own case as decided on 3.11.2014, we find that the issue is same and squarely covered in the appellants favour. The reliance placed by the Tribunal in the case of Toyoto Kirloskar Auto Parts (supra) is correct and we reproduced the findings recorded by this Bench in the appellants own case: -
5. The substantial question of law which arises for consideration in this appeal is whether the Tribunal was right in confirming the demand of interest under rule 7(4) of the Central Excise Rules, 2002 without harmoniously reading the provisions of rule 7(5) of the Central Excise Rules, 2002?
6. Rule 7 reads as under:-
"Rule 7. Provisional assessment - (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such raw or on such value as may be specified by him.
(2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed.
(3) The Assistant Commissioner of Central Excise of the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1):
Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissioner of Central Excise for such further period as he may deem fit.
(4) The assesses shall be liable to pay interest on any amount payable to 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 or section 11AB of the Act from the first day of the month succeeding the month for which such a .mount is determined, till the date of payment thereof.
(5) Where the assessee 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 manufacture, 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 incidence of such duty to any other person."
6. In view of the foregoing in the facts and circumstances of this case, we find that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Pronounced in Court)
(C.J. Mathew) (M.V. Ravindran)
Member (Technical) Member (Judicial)
Sinha
2
Appeal No. E/25-27/07