2010 (4) TMI 439 - HC - Central Excise

Interest- The respondent had been paying the duty in terms of the value arrived at on the date of payment of duty. However the appellant by contending that there was a delay in payment of duty on account of variation in price issued a show cause notice by demanding interest and penalty on the delayed payment of duty for the period from 1.4.2003 to 31.3.2004. Adjudicating authority and Commissioner (Appeals) uphold the demand. The respondents thereafter preferred an appeal before the tribunal which was allowed. It is against the said order the revenue has preferred this appeal. Held that- no determination of nor there was short payment thus interest not applicable. Question answered against revenue.

Summary

Issues:
1. Applicability of interest on delayed payment under Section 11AB of the Central Excise Act, 1944.
2. Liability of an assessee to pay interest on duty paid due to subsequent refixation of prices.
3. Granting immunity from penalty by the Hon'ble CESTAT Bangalore.

Analysis:

Issue 1: Applicability of interest on delayed payment under Section 11AB
The appeal challenged an order demanding interest and penalty on delayed payment of duty due to a variation in price. The appellant argued that duty should be paid on price variation, justifying the show cause notice. However, the respondent contended that the duty was paid based on the value of goods at the time of payment, and subsequently, the duty on differential price was also paid. The court found that the show cause notice did not demand duty payment for price variation, and as duty was paid on the differential price, Section 11AB was not applicable. The court emphasized that Section 11AB applies when duty has not been levied or paid, which was not the case here.

Issue 2: Liability for interest on duty paid due to subsequent price refixation
The appellant relied on a Supreme Court decision to argue that the provision of Section 11AB applied in this case. However, the court found that the cited case involved a different scenario where the duty was not paid on the differential price at the time of clearance. In contrast, in the present case, duty was paid on the differential price when the price escalation occurred. The court noted that the price escalation was due to external factors like input labor costs and was not foreseeable at the time of clearance. Therefore, the court concluded that the Supreme Court decision was not applicable to the current case.

Issue 3: Granting immunity from penalty
The tribunal had set aside the orders of lower authorities, leading to the revenue's appeal. The court, after considering arguments from both sides and examining the facts, upheld the tribunal's decision. It concluded that the substantial questions of law raised in the appeal must be answered against the revenue. Consequently, the court dismissed the appeal, affirming the tribunal's decision.

In conclusion, the court's detailed analysis of the issues highlighted the inapplicability of Section 11AB in the case due to duty being paid on the differential price, the distinction from the cited Supreme Court decision, and the affirmation of the tribunal's decision granting immunity from penalty.