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TMI Blog2010 (1) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ccrual of price differential duty when paid after clearance, it indicates short payment/ short levy on date of removal hence interest become leviable. - 225 of 2010 - - - Dated:- 8-1-2010 - S.H. Kapadia and Aftab Alam, JJ. S/Shri G.E. Vahanvati, S.G., Chinmoy Pradip Sharma, T.V. Ratnam, B.K. Parasad, Mrs. Anil Katiyar, Advocates with him, for the Appellant. S/Shri P.C. Jain, Sandeep Jain, Rajesh Kumar, Krishna Kumar R.S., K.S. Mahadevan, Advocates, for the Respondent. [Order]. - Delay condoned. 2. Leave granted. 3. In this case, Department seeks to recover interest on differential duty, paid by the assessee, under Section 11AB of the Central Excise Act, 1944, which is disputed by the assessee. 4. During the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. It was submitted that, in the circumstances, the present case was not a case of short-levy or non-levy of the goods removed by the assessee calling for recovery under Section 11A of the Act, hence, this was not a case for charging of interest under Section 11AB of the Act. Learned counsel appearing on behalf of the assessee submitted that this case is squarely covered by the judgement of three learned Judges of this Court in the case of M.R.F. Limited v. Collector of Central Excise, Madras, reported in 1997 (92) E.L.T. 309. 7. We find no merit in the submissions advanced on behalf of the assessee. The controversy arising in this civil appeal is squarely covered by the judgement of this Court in the case of Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). But Explanation 2 to the sub-section makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11AB, that is, for the period from the first date of the month succeeding the month in which the duty ought to have been paid till the date of payment of the duty. What is stated in Explanation 2 to sub-section (2B) is reiterated in section 11AB that states where any duty of excise has not been levied or paid or has been short levied or short paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid/levied is short. Both, the Commissioner (Appeals) and the CESTAT have observed that the Assessee paid the duty on its own accord immediately when the revised rates became known to them from their customers. The differential duty was due at that time i.e. when the revised rates applicable with retrospective effect were learnt by the Assessee, which was much after the clearance of the goods and therefore, question of payment of interest does not arise as the duty was paid as soon as it was learnt that it was payable. Finding that provisions of Section 11A(2) and 11A(2B) were not applicable as the situation occurred in the instant case was quite different, section 11AB (1) was not at all applicable, and therefore, the Assessee was not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve-quoted paragraphs, that sub-section 2(B) of Section 11A provides that the assessee in default may make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and, in that event, such assessee in default would not be served with the Demand Notice under Section 11A(1) of the Act. However, Explanation (2) to the sub-section makes it clear that such payment would not be exempt from interest chargeable under Section 11AB of the Act. What is stated in Explanation (2) to sub-section 2(B) is reiterated in Section 11AB of the Act, which deals with interest on delayed payment of duty. From the Scheme of Section 11A(2B) and Section 11AB of the Act, it becomes clear that interest is levied for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment on 14th May, 1983, but subsequent thereto, on account of consumer resistance, the Government of India directed the assessee to roll back the prices to pre-14th May, 1983 level and on that account, price differential arose on the basis of which the assessee claimed refund of excise duty which stood rejected by this Court on the ground that once the assessee had cleared the goods on classification, the assessee became liable to payment of duty on the date of removal and subsequent reduction in the prices for whatever reason cannot be made a matter of concern to the Department insofar as the liability to pay excise duty was concerned. In the present case, we are concerned with the imposition of interest which, as stated above, is charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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