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TMI Blog2010 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... uty determined under Subsection [2) of Section 11A or also for duty which has been paid under Sub-section 11A of the Central Excise Act, 1944? (ii) Whether an assessee is liable to pay interest when he pays the duty because of subsequent refixation of prices through supplementary invoices, from the date of clearance of the goods? (iii) Whether the Hon'ble CESTAT Bangalore has right in law, granting immunity from penalty to the respondent? 2. The facts leading to the filing of this appeal are that, the respondent-assessee which is a manufacturer of heavy electrical goods had cleared the goods on payment of duty at 16 % as prescribed while discharging the duty liability. The respondent had been paying the duty in terms of the value arrive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944, the demand made was justified and that the tribunal was not correct in setting aside the orders passed by the lower authorities. He, therefore, submits that the order passed by the tribunal be set aside and the demand made in terms of the show cause notice be upheld. 5. Per contra, learned counsel for the respondent brought to oar notice the copy of the show cause notice as well as the reply issued to the same and has contended that Section 11AB of the said Act is not applicable to the facts of the present case considering the fact that as on the date the duty was paid there was no price variation and therefore, the duty paid was in terms of the value of the said goods and subsequently, when there was a variation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price and therefore, the differential duty was paid for the relevant period. In the circumstances, the provisions envisaged under Section 11AB of the Act are not applicable to the facts of the present case as in the instant case there has been no determination of the duty nor there has been short, payment of duty under Section (2B) of Section 11A. Section 11AB is applicable and interest on delayed payment of duty arises only when any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded. The aforesaid circumstances are not applicable in the instant case. Therefore, the issuance of the show cause notice dated 19.10.2004 by invoking the provision of Section 11AB in the instant case is impro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by All India Electrical Manufacturers Association. In terms of the said direction, the supplementary invoices were issued to facilitate the recovery of the expenditure of cost escalation and the enhanced duty thereon was paid. Therefore, as On the date the goods were cleared initially, if such a price escalation had not taken place, then the asssssee could not foresee, the subsequent escalation in price. However, In the instant case the assessee paid duty on the differential price also. Therefore, we cannot apply the said decision to the present case. 8. For the aforesaid reasons and for the reasons assigned by the tribunal, we are of the view that the substantial questions of law raised in this appeal have to be answered against the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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