ORDER
M.P. Bohra, Member (J)
1. Heard Shri B N C Chattopadhyay, Consultant for Appellant and Shri K K Sanyal, J D R for Respondent.
2. Mr. Chattopadhyay submits that in present case the Commissioner failed to appreciate that the appellant had prayed for correction of determination of production capacity before the Commissioner. The appellant had paid the duty On the production capacity determined by the Commissioner under protest under the provision of Rule 233B of said Rules. He submits that when the payment had been made under protest and redetermined capacity had been disputed, the demand of interest is not just and proper. He further submits that capacity of production had determined by the Ld. Commissioner in his order dated 27.02.1998 and the appellant had paid the duty under protest. In fact, they had paid more duty which is in excess of the amount of the duty payable on the basis of actual production during the period from Sept. 1997 to Feb. 1998. Therefore he submits that n the circumstances the interest is not payable as the demand becomes due on the final determination of the capacity. He relies on the decision rendered in the case of HB Fibres Ltd. v. Commr. Of Customs, Amritsar . Therefore he submits that the appeal may be allowed.
3. Ld. JDR supports the impugned order.
4. From perusal of the record and the Order-in-Original it is clear that the interest has been demand on the payment made from 01.10.1997 to 11.03.1998. It is evident from the order of the Commissioner (Appeals) and the Adjudicating Authority that the annual production capacity was provisionally fixed at 2506 MT vide letter dated 20.11.1997 and the final capacity was fixed at 3147.567 MT per annum vide Commissioner’s order No. 22/98 dated 27.02.1998. The appellant had deposited their duty liability on the basis of provision a fixation of production capacity. The final annual production capacity was fixed on 27.02.1998 by virtue of proviso to Rule 96ZP, where a manufacturer has paid the duty amount during any month on the basis of provisional determination of annual capacity and subsequently the annual capacity is determined on final basis, the manufacturer shall pay the whole of the differential amount recoverable for the relevant months by the 10th of the month succeeding the month in which the annual capacity is determined on final basis. In present case the annual capacity was finally determined on 27.02.1998. So the differential dty amount was payable by 10th of March 1998. The perusal of the Order-in-Original reveals that all amount from 01.10.0997 to 11.03.1998 are falling between this periods. The appellant were discharging their duty liability as per the provisional determination of the capacity. Therefore they are not liable to pay the interest Similar view was expressed in the case of HB Fibres Ltd. Commissioner of Customs, Amritsar. “Interest-Demand (Customs) for interest-Provisional assessment at the time of clearance of goods-Duty Liability discharged by assessee prior to finalisation of assessment-Interest not livable under Section 28AB of Customs Act, 1962. [para6]”. In present case also the appellant have discharged the duty liability prior to finalisation of final determination of the capacity. Therefore they are not liable to pay the interest. Appeal deserves to be allowed.
4. Consequently I set aside the impugned order. Allow the appeal with consequential relief to the appellant.