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TMI Blog2011 (6) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... firm at the time of placing of the order subject to price variation clause which is based on the price of EC Grade Aluminium and HTG Steel Core Wire as per the CACMAI Circulars. In terms of this price variation clause in many cases, the appellant raised supplementary invoices in respect of supplies made and received additional payments towards the conductors supplied with excise duty leviable thereon and the same was paid to the department. The question as to whether the appellants are liable to pay interest on such additional excise duty paid by them on the difference amount was considered in the proceedings initiated by the revenue which culminated in Order-in-Appeal dated 31.05.2004 wherein the Commissioner (Appeals) relying upon several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) or has paid the duty under sub section (2B) of Section 11A shall be liable to pay interest. The word shall would show that the section intended that interest liability is automatic and therefore the question of issue of show cause notice, issue of order etc. are not important since the liability automatically arises once the principal is determined to be payable. The learned counsel on the other hand submitted that provisions of Section 11AB would not be attracted in the facts and circumstances of this case. He drew my attention to the show cause notice wherein proposal is only to demand interest and there is no proposal to determine the duty payable under Section 11A (2) of the Central Excise Act, 1944. Only when the duty liability ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was also not considered in the case of Abhinav Industries. In the case of T.V.S. Whirpool Ltd., the Hon`ble Supreme Court had observed that it is only reasonable that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon. We find no merit in the appeals and they are dismissed with costs. Therefore in the facts and circumstances of this case where the show cause notice did not propose determination of duty liability nor there is evidence to show that duty was paid under section 11A(2B) the claim that interest liability automatically arises and therefore the limitation would not be applicable cannot be sustained. 5. Learned JCDR also submitted that in the case of SKF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Tribunal which have been cited by the lower authorities also holding that interest is not payable in excess where supplementary invoice is raised and differential duty is collected and paid. In the case of SKF India Ltd. there was no Order-in-Appeal in their favour during the relevant period to which the demand related. Therefore the facts of the case of SKF India cannot be applied to the present one. 6. Further learned counsel for the appellant also submitted that the decisions in the case of Abhinav Industries and ANS Steel Tubes - 2011 (265) ELT 127 (Tri.-Del.) which are the only 2 cases in which a view has been taken in favour of the revenue can be distinguished. In the case of Abhinav Industries as already observed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e section and the present section contains the non obstante clause. Therefore the very fact that a section with non obstante clause has been introduced in the present Finance Act would show that for the earlier period, the time limit under Section 11A would apply. I am not going to discuss this issue in view of the fact that in the facts of this case itself I have taken a view that demand could not have been invoked by applying extended period. Therefore even if a view is taken that Section 11A applies, the appellants would succeed. Further in the case of SKF India Ltd., the Hon'ble Supreme Court did not consider whether the demand for interest has to be issued within a time limit at all. In fact this issue that the demand was time barred d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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