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2023 (5) TMI 330 - AT - Central ExciseDemand of Interest - amount received in terms of price variation clause for which the appellant has issued supplementary invoices - HELD THAT - The issue is no longer res integra and has been decided by and is now covered by the decision of the Larger Bench of Hon ble Supreme Court in the case of Steel Authority of India Ltd. 2019 (5) TMI 657 - SUPREME COURT . Reference was made to the Larger Bench vide order reported at 2015 (12) TMI 594 - SUPREME COURT doubting the correctness of earlier orders passed in the case of SKF India Ltd. 2009 (7) TMI 6 - SUPREME COURT and International Auto Ltd. 2010 (1) TMI 151 - SUPREME COURT . The Larger Bench considered the issue and has held that The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, Section 11A and Section 11AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. Since the issue is squarely the same, there is found no justification to allow the appeal filed by the appellant, even though the same has been dismissed without consideration of the issue on merits for the reason that it was filed beyond the prescribed period for which the Commissioner (Appeals) could have condoned the delay. Appeal dismissed.
Issues Involved:
1. Delay in filing the appeal. 2. Demand of interest under Rule 7(4) of Central Excise Rules, 2002 read with Section 11AA of Central Excise Act, 1944. Summary: Issue 1: Delay in Filing the Appeal The Commissioner (Appeals) rejected the appeal due to a delay of 38 days in filing, which is beyond the condonable period. According to the statutory provisions, the appeal should have been filed within sixty days from the date of communication of the order, with an additional 30 days condonable delay. The appeal was filed on 21.12.2012, which is 38 days late, and hence, it cannot be entertained as it is hit by provisions of time bar. The Commissioner (Appeals) cited the decision of the Hon'ble Apex Court in Singh Enterprises [2008 (221) ELT 163 (SC)] to support this view. Issue 2: Demand of InterestThe original authority finalized the provisional assessment for transformers cleared during April 2010 to March 2011 and demanded recovery of duty and interest. The appellant issued supplementary invoices due to price variations in raw materials and discharged additional duty. The appellant argued that they were forced to opt for provisional assessment and pay interest due to the wide gap between tender submission and actual supply. They contended that the eventual price of transformers was not known at the time of tender submission and was determined later by IEEMA. The Tribunal noted that the issue of demand of interest is covered by the decision of the Larger Bench of the Hon'ble Supreme Court in Steel Authority of India Ltd. [2019 (366) ELT 769 (SC)], which held that interest is payable from the first day of the month succeeding the month in which duty ought to have been paid. The Tribunal found no justification to allow the appeal on merits as the issue is no longer res integra and is settled by the Supreme Court. Consequently, the appeal was dismissed, and cross objections were disposed of. (Order pronounced in the open court)
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