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TMI Blog2016 (12) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... pective price amendment, the differential price would become payable by the buyer of the goods and as per the definition of transaction value, the amended price ought to have been the transaction value of the goods already cleared by the assessee and the goods should have been assessed to duty on the basis of such transaction value. However, when the goods were originally cleared by the assessee the same were not correctly assessed to duty at transaction value in as much as the price at which the goods were originally cleared was not the amended price, and therefore, the value arrived at by the assessee was not the transaction value for the purpose of assessment of duty. Show cause notice was issued proposing demand of differential duty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was upheld. 3. Shri Prakash Shah, Ld. Counsel for the respondent submits that there is no dispute regarding the demand of duty on the escalation of price. He submits that the appellant had no intention to evade payment of duty on the escalated price at the time of clearance, the appellant have paid the duty on the transaction value prevailing at the time of clearance of the goods. The price was escalated subsequent to the clearance of the goods by the buyer therefore on the escalation portion of the value, there was no reason to pay duty at the time of clearance of the goods, therefore the penalty under Section 11AC cannot be imposed. He further submits that the issue of interest on the duty paid due to escalation of price subsequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty paid on the escalated portion of the value. This issue has been considered in various judgments as cited by the Ld. Counsel, subsequently the matter was referred to the Larger Bench of the Hon'ble Supreme Court. As regard the intention of the appellant regarding payment of duty on the escalation value, I am of the view that at the time of clearance of the goods there was no knowledge to the appellant about any differential value. The value was escalated subsequent to the clearance of the goods by the buyer. The appellant have paid the duty without any contest to the demand. In this fact there is no reason to invoke Section 11AC for the penalty. Moreover, the issue of interest is still debatable; therefore there cannot be malafide i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the value was enhanced at the time of issuance of supplementary invoice. The Hon'ble High Court has decided this very issue and from the order also it can be seen that the Rule relating to the issue of interest was confirmed. Though the Tribunal order was set aide, which involved the penalty also but no explicit finding on the penalty was given by the Hon'ble High Court of Gujarat. Considering the legal position of chargeability of interest which is highly debatable issue and therefore it cannot be said that the appellant had any malafide intention, therefore this is not a case for imposition of penalty under Section 11AC of the Act. As per our above discussion and the various judgments cited by the Ld. Counsel, I am therefore of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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