2018 (6) TMI 861 – CESTAT CHENNAI – TMI – Demand of Interest on Differential Duty – finalization of provisional assessment – Held that:- The entire differential duty including cess as applicable amounting to ₹ 95,94,137/- was paid on 30.04.2010 itself much before the finalization of assessment which is dated 07.09.2010 and therefore there was no duty payable by the appellant consequent to the determination of duty payable on finalization of provisional assessment.
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It is a settled position of law that when there are diametrically opposite decisions of High Courts are available, then, with highest respects, it is construction which favours the assessee must be adopted.
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Appeal allowed – decided in favor of appellant. – E/42345/2017 – FINAL ORDER No. 41487/2018 – Dated:- 15-5-2018 – P. DINESHA, Member (Judicial) Shri Sai Prashanth, Adv., for the appellant Shri R. Subramaniyam, AC (AR) for the Respondent. ORDER Brief facts of the case are that the appellants are engaged i
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377; 20,53,468/- on 04.11.2010 towards the interest demanded and simultaneously they made a claim of refund of the interest so paid on the ground that the payment was made on the mistake of law also placing reliance on the order of the Mumbai Tribunal in the case of CCE Vs. Ispat Industries Ltd. – 2010 (259) ELT 662 (Bom.). The adjudicating authority vide his Order-in-Original dated 30.03.2012, rejected the aforesaid refund claim put forth by the appellants against which the appellant preferred an appeal before the Commissioner (Appeals) LTU, Chennai. In appeal, the Commissioner (Appeals) vide his order dated 02.01.2014 allowed the appeal holding that the appellant was not required to pay the interest on the differential duty and further held that they are eligible for refund of the interest so paid. Against this order the department went on appeal before the Chennai Bench of the Tribunal and the Tribunal vide Final Order No. 40284-40285/2016 dated 18.02.2016 rejected the appeal filed
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Cine Super 8 Pvt. Ltd. Vs. UOI – 1994 (72) ELT 20 (Bom.) and Sulochana Amma Vs. Narayanan Nair – 1995 (77) ELKT 785 (S.C.). Aggrieved by the said order of the Ld. Commissioner (Appeals), the tax payer is before this forum. 2. On behalf of the appellants, Shri R. Sai Prashanth appeared and submitted that it was the case of the tax payer that in the first place the reliance on Rule 7 (4) of CER is misplaced in as much as the same applies to a situation where any amount of duty has become payable consequent to the determination of differential duty upto the finalization of assessment which is not the case here. It was further explained that the entire differential duty including cess as applicable amounting to ₹ 95,94,137/- was paid on 30.04.2010 itself much before the finalization of assessment which is dated 07.09.2010 and therefore there was no duty payable by the appellant consequent to the determination of duty payable on finalization of provisional assessment. The appellant he
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Bombay High Court supports the contention of the tax payer. 4. Heard both sides and perused the records. 5. Undoubtedly, the issue involved is no more res integra since this Tribunal has already taken a decision in its orders in the appellant s own cases for different periods as stated by the Ld. Counsel appearing for the tax payer. This Tribunal in all its earlier orders has relied on the decisions of the Hon ble Bombay High Court in Ispat Industries Ltd. (supra). While passing the orders, this Court has duly taken note of the decision of the Hon ble High Court of Allahabad but has also relied on the decision of Hon ble Supreme Court in the case of J.K. Synthetics Ltd. Vs. CTO – 1994 (4) SCC 276, which is relating to the interest provisins in respect of Rajasthan Sales Tax Act. It is a settled position of law that when there are diametrically opposite decisions of High Courts are available, then, with highest respects, it is construction which favours the assessee must be adopted, as
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