M/s. Tube Investments of India Ltd. Versus GST & CCE, Chennai North
Central Excise
2018 (6) TMI 861 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 15-5-2018
E/42345/2017 – FINAL ORDER No. 41487/2018
Central Excise
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 in the manufacture of steel strips and steel tubes falling under Chapter 72 & 73 of Central Excise Tariff Act, 1985. They had removed the manufactured goods to their sister units for captive consumption for further use in the manufacture. They opted for provisional assessment in respect of the said clearances since the material cost undergoes fluctuation frequently and the actual overheads could be determined only at the end of the financial year. The appellants determined the final assessable value for the period in dispute on their own and paid the differenti
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ssioner (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 by the department. It is an admitted position by both the appellant and the department that the said order of this Tribunal has remained unchallenged.
The appellants made an application for refund vide letter dated 2.05.2014 requesting for refund based on the OIA of the Commissioner (Appeals), LTU dated 02.01.2014 and the adjudicating authority vide his order dated 04.07.2014 allowed the refund claim by sanctioning refund of interest of Rs. 20,53,468/- under Section 11 B of the Central Excise Act, 1944. Feeling aggrieved against this order, the department filed an appeal
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essment which is not the case here. It was further explained that the entire differential duty including cess as applicable amounting to Rs. 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 heavily relies on the decisions of the Hon'ble Bombay High Court in the case of Ceat Ltd. Vs. CCE, Nasik – 2015 (317) ELT 192 (Bom.), CCE, Nagpur Vs. Ispat Industries Ltd. – 2010 (259) ELT 662 (Bom.), Tata Motors Ltd. Vs. CCE, Pune – 2012 (26) STR 285 (Tri.Mum.) and the ordesr of this Tribunal in the appellant's own case for earlier/later periods viz., Final Order Nos. 40284-40285/2016 dated 18.02.2016, Final Order No. 41624/2017 dated 09.08.2017, and Final Order No. 42444-42446/2017 dated 25.10.2017.
3. On the other hand, the Ld. AR arguing for the Commissioner submits that the
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d 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 laid down by the Hon'ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd. – (1972) 88 ITR 492 (SC), which decision has been followed by the Apex Court in the case of Petron Engineering Construction Pvt. Ltd. and another Vs. CBDT & Ors.- (1989) 175 ITR 523 (S.C.).
6. Considering the above, I see no reason to deviate from the decisions taken by this Court that too, in the appellant's own cases for different periods, and hence I allow the appeal with consequential relief.
(Operative part of the Order pronounced in the open Court)
Case laws, Decisions, Judgeme
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