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TMI Blog2011 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... e to undergo revision, they should have resorted to provisional assessment. On finalization of the assessment, they should have discharged the differential duty liability along with interest thereon as per the provisions of law - In the case of Commissioner of Central Excise v. International Auto Ltd. - (2010 -TMI - 76216 - SUPREME COURT OF INDIA) wherein it has been held that when differential duty is paid after clearance, it indicates short payment/short levy on date of removal. Therefore interest becomes leviable under Section 11AB of the Central Excise Act, 1944 - Appeal is dismissed - E/364/2010-Mum - A/381/2011-WZB/C-IV(SMB) - Dated:- 22-9-2011 - Shri P.R. Chandrasekharan, J. REPRESENTED BY : Shri S.N. Kapoor, Advocate, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the liability to pay differential duty arose on account of price variation clause in respect of supplies made to their customers. They also produced a copy of the agreement dated 3-9-2004 entered into by them with the Uttaranchal Power Corporation Ltd. The agreement relates to supply of fabricated galvanized lattice single circuit/double circuit towers and their extension, ACSR Panther Conductor, earthwork etc. and so on. Clause 18 of the said agreement relates to price variation which states that price variation shall be allowed only on Tower Parts and Erection portion as per price adjustment formula given. The price variation is on account of any rise or fall in the cost of labour, on account of raw materials used in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of C.C.E., Pune v. SKF India Ltd. - 2009 (239) E.L.T. 385 (S.C.). The learned Counsel submits that the facts in the case are identical to those mentioned in BHEL case cited (supra) and in their case also, when they discharged the duty liability at the time of clearance of goods, they could not foresee the future changes in price. 4. The learned A.R. appearing for the department relies on the decision of the Hon ble Apex Court in the case of SKF India Ltd. cited (supra) and also on Commissioner of Central Excise v. International Auto Ltd. - 2010 (250) E.L.T. 3 (S.C.) wherein it has been held that when differential duty is paid after clearance, it indicates short payment/short levy on date of removal. Therefore interest becomes leviable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise as the case may be, in writing giving reasons for payment of duty on provisional basis and the Asst. Commissioner or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or such value as may be specified by him. Sub-rule (3) of the said rule also provides for passing order of final assessment by the Asst./Deputy Commissioner after the relevant information, as may be required for finalizing the assessment, is available, but within the time limit of six months which may be extended by the Commissioner of Central Excise, for such further period as he may deem fit. Sub-rule (4) of Rule 7 provides that the assessee shall be liable to pay inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (2B) of Section 11A, shall, in addition to the duty be liable to pay interest at such rate as fixed by the Central Government from the first day of the month succeeding the month in which the duty ought to have been paid till the date of payment of duty. In the instant case the assessee on his own has discharged the differential duty liability towards short payment of duty on their own ascertainment and, therefore, the matter will come under the purview of sub-section (2B) of the Section 11A (i.e. discharge of duty has been done on the basis of own ascertainment). If the duty liability is discharged under sub-Section (2B) of Section 11A, liability to interest under Section 11AB automatically arises from the first day of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be applied to the facts of the present case. It is also noted that while passing the order in the BHEL case, the Hon ble High Court had not taken into consideration the decision of the Hon ble Apex Court in the case of International Auto Ltd., which clearly lays down the principle that once there is a delay in payment of duty on account of short levy/short payment whether on the basis of determination by the department or on the basis of own ascertainment of duty by the assessee, interest is liable to be paid under Section 11AB of the Central Excise Act, 1944. 7. In the light of the above, there is no infirmity in the orders of the lower adjudicating and appellate authorities. The appeal is devoid of merits and is dismissed. (Dictated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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