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TMI Blog2012 (11) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... when earlier cleared from the factory - argument was not advanced earlier and the duty liability has to be worked out allowing credit on the duty paid earlier - matter remanded to the original authority for examination - E/218/2011 - A/457/2012 - Dated:- 7-5-2012 - Dr. Chittaranjan Satapathy, JJ. REPRESENTED BY : Shri K.S. Venkatagiri, Advocate, for the Appellant. Shri Parmod Kumar, SDR, for the Respondent. [Order]. This appeal involves a small interest amount of Rs. 86,209/- but an important issue for which there is no specific provision provided in the law. The brief facts of the case as stated in the appeal are as follows :- 2. The appellant is a public limited company engaged in the manufacture of footwear under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant paid the duty in TR-6 Challan and no invoice or supplementary invoice for the duty paid on 30-3-2006 was raised. 4. In this background, the jurisdictional Deputy Commissioner issued the show-cause notice, demanding interest on the premise that the duty paid by the appellant is the differential duty on account of price increase in MRP on past clearances and hence interest under Section 11AB of the Excise Act is payable. The appellant vide their reply dated 9-1-2007 to the show-cause notice stated that no interest is liable to be paid, inter alia, on the grounds that the excise duty is paid on the MRP prevalent at the time of removal and any subsequent increase will not affect the duty liability as on date of the removal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant and the assumption of the Order-in-Original that the appellant had issued a supplementary invoice is incorrect. The learned Commissioner (Appeals) without appreciating the facts and the submissions made by the appellant had confirmed the demand raised by the Order-in-Original by relying on the Apex Court decision of SKF Limited reported in 2009 (239) E.L.T. 385 (S.C.). 6. Being aggrieved by the above impugned order, the appellants have filed the present appeal on the following grounds which are without prejudice to one another :- I (1) The impugned Order-in-Appeal demands interest under Section 11AB of the Excise Act for the differential duty paid on the footwear lying at the depot on account of increase in MRP. The di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4. (6) The appellant thus submits that the impugned order is based on incorrect presumption and incorrect appreciation of facts inasmuch as treating the value under consideration as Section 4 value when the valuation is actually based on Section 4A. Thus the impugned order is liable to be set aside on this ground itself. II (1) The appellant without prejudice to the above argument, submits that the activity of alteration of MRP amounts to manufacture as per Section 2(f)(iii) of the Excise Act. (2) Section 2(f)(iii) of the Excise Act reads as under :- (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue date of 31-3-2006), the question of delayed payment does not arise. (7) The appellant thus based on the above submissions submit that when the tax has been paid before the due date, there is no delay in the payment of tax and consequently the question of levying interest does not arise. (8) The appellant thus humbly submits that the impugned Order-in-Appeal be set aside on this ground itself. 7. Heard both sides. The learned counsel appearing for the appellants reiterates the grounds taken by the appellants in the appeal. On the other hand, the learned SDR appearing for the Department supports the impugned order. It is not in dispute that the MRP for the impugned goods has been subsequently changed by the appellants and they have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alternate submission of the appellants that alteration of MRP on the impugned goods amount to manufacture and therefore the liability to pay duty on the altered MRP arises only in the month of March 2006, it is a new argument. This argument was not taken either before the original authority or before the lower appellate authority. Nevertheless, I find substance in the argument advanced in the appeal and argued by the learned counsel for the appellants. However, the argument that alteration in the MRP would amount to manufacture, would also necessitate taking a new registration by the appellants for their depot and the duty payment has to be made on the impugned goods after taking credit in respect of the duty paid on the footwear bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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