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2013 (1) TMI 172 - AT - Central ExciseWaiver of pre-deposit - Stay of recovery - Interest on differential duty - Interest u/s 11AB - Revision in price - Goods were cleared to a sister concern for captive consumption - CAS-4 - Rule 7 of the Central Excise Rules, 2002 The assessee had paid duty on these goods on the basis of provisional CAS-4 certificate issued by their Cost Accountant - When the final CAS-4 certificate was received from the Cost Accountant, the assessee paid differential duty on the goods - Held that - This case is squarely covered against the assessee in case of M/s SKF India Ltd. (2009 (7) TMI 6 - SUPREME COURT) Having made out no prima facie case, the appellant shall pre-deposit entire amount of interest. Waive & stay denied. Against assessee
Issues:
Waiver of pre-deposit and stay of recovery in respect of interest on differential duty paid on goods cleared during 2008-09. Analysis: The applicant sought waiver of pre-deposit and stay of recovery for an amount demanded as interest on differential duty paid on goods cleared during 2008-09. The goods were cleared to a sister concern for captive consumption, and duty was initially paid based on a provisional CAS-4 certificate. Upon receiving the final CAS-4 certificate, the applicant paid the differential duty. The issue arose regarding the levy of interest under Section 11AB of the Central Excise Act on this differential duty. The original authority confirmed the demand of interest without imposing any penalty. The appellant claimed a prima facie case for waiver and stay based on a previous Division Bench ruling and a High Court judgment. However, the Superintendent (AR) argued that subsequent Supreme Court and High Court judgments supported the levy of interest under Section 11AB in such cases. The learned consultant for the appellant contended that the appellant always had excess CENVAT credit, suggesting no intent to evade interest on the differential duty. The consultant argued that had the full duty been paid at the time of clearance, a revenue-neutral situation would have arisen. However, the Tribunal found no prima facie case for the appellant. The Tribunal noted that the appellant did not have a final CAS-4 certificate at the time of clearance and should have opted for provisional assessment under Rule 7 of the Central Excise Rules, 2002. The Tribunal concluded that the appellant did not opt for provisional assessment with the intent to evade interest on the differential duty. The Tribunal held that the issue was squarely covered against the appellant by the Supreme Court's ruling in SKF India Ltd. case, as clarified in International Auto case and followed by the High Court in Presscom Products case. The Tribunal stated that the Division Bench's previous order in the appellant's case did not reflect the correct legal position and was overruled by subsequent decisions. Consequently, the appellant was directed to pre-deposit the entire amount of interest within six weeks. The appellant's liability to pay interest under Section 11AB on differential duty was deemed questionable, and compliance was to be reported to the Assistant Registrar by a specified date.
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