2013 (1) TMI 466 - AT - Central Excise

Maintainability of objection raised on the basis of National Litigation Policy - Held that - Any preliminary objection has got to be raised on the earliest available occasion. The objection presently raised by the learned counsel was never raised before. Though the respondents could have raised it when the Tribunal heard the stay applications filed by the appellant. Those stay applications were heard with due notice to the respondents but none of them chose to raise any objection of the above kind when the stay applications were taken up for disposal. In the circumstances, the above objection raised by the learned counsel cannot be entertained at this stage. This apart, the National Litigation Policy purports to avoid litigation between the department and assessees in cases involving relatively small amounts in the present cases, the litigation between the department and the assessees is at the concluding stage. To raise an objection of the above kind at this stage will be futile exercise. Issue is therefore held against assessee. Interest under Section 11AB - whether liable to pay interest on differential duty paid by them under supplementary invoices issued subsequent to clearance of the goods - Held that - As decided in Commissioner of Central Excise, Pune Versus M/s SKF India Ltd. 2009 (7) TMI 6 - SUPREME COURT he payment of differential duty without supplementary invoices on the basis of enhancement of price of goods under escalation clause of agreement between the assessee (manufacturer) and his customer, subsequent to clearance of the goods on payment of duty based on the price originally agreed, is a payment under sub-section 2B of Section 11A of the Central Excise Act and that interest under Section 11AB of the Act was liable to be paid on such differential duty for the period from the date of clearance of the goods to the date of payment of differential duty - against assessee. Whether the demands for the above interest on differential duty is time barred - Held that - In the cases covered by Appeals E/1512, 1517 & 1519/2011, the demand of interest on additional duty is within the normal period of limitation in terms of the above view taken by the apex court in TVS Whirlpool case 1999 (10) TMI 701 - SUPREME COURT OF INDIA - for Appeals E/930/09, E/1509,1511, 1513, 1514, 1515, 1516 and 1518/2011 plea of limitation was raised by the respondents before the original authorities. However, it appears, no attempt was made either by the original authorities or by the appellate authority to examine whether the demands of interest were wholly or partly time barred - remand the limitation issue to the original authority for fresh decision

Summary

Issues:
1) Whether objection based on National Litigation Policy is entertainable.
2) Liability of respondents to pay interest on differential duty under Section 11AB.
3) Time bar on demands for interest on differential duty.

Analysis:

Issue-1:
The objection raised by the respondents' counsel regarding the National Litigation Policy was not entertained by the Tribunal. The objection was considered untimely as it was not raised earlier in the proceedings. The National Litigation Policy aims to avoid litigation in cases involving small amounts, which was deemed futile at the concluding stage of the present cases. Therefore, the issue was held against the respondents.

Issue-2:
The Tribunal referred to judgments by the Supreme Court, specifically Commissioner of Central Excise Vs. SKF India Ltd. and Commissioner of Central Excise Vs. International Auto Ltd., which held that interest under Section 11AB of the Central Excise Act is applicable on differential duty paid after clearance of goods. The facts of the cases were found to be similar to the present cases, leading to a decision in favor of the appellant.

Issue-3:
Regarding the time bar on demands for interest on differential duty, it was argued that the limitation issue was raised before the original authorities but not adequately considered. The Tribunal referred to the TVS Whirlpool Ltd. case upheld by the Supreme Court, stating that the same period of limitation for demand of duty could be applied to demand of interest on duty. Appeals E/1512, 1517, and 1519/2011 were allowed due to being within the normal limitation period. For other cases, the Tribunal remanded the limitation issue to the original authority for a fresh decision, emphasizing the need for a fair hearing for the respondents.

In conclusion, the appeals were allowed based on the above analysis, with certain appeals remanded for further consideration on the limitation issue.