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TMI Blog2018 (6) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... date of clearance there was no agreement between the seller and the buyer of the goods about the escalated price as are mentioned in the supplementary invoice and in accordance of Section 4 of the act whatever the transaction value is agreed between the parties at the time of clearance is relevant for Section 11A and even the purpose of Section 11AB the expression “ought to have been paid” would mean the time when the price is agreed upon by the seller and the buyer. Since both the parties were not aware of escalated price or possibility of escalation at the time the goods were removed, the supplementary invoice cannot be a ground to call the said duty paid as the short levied. Demand do not sustain - appeal allowed. - Excise Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge had upheld the decision as far as the recovery of interest of ₹ 89,809/- is concerned. However, the Commissioner had rejected the appeal as far as the imposition of penalty is concerned. 2. I have heard both the parties here at length. 3. The appellant has submitted that the question of making the payment with interest does not at all arise because the goods in question were already dispatched and the change in price is subsequent due to escalation in price. It is thereafter, that supplementary invoices were raised. It is impressed upon that the decision of Supreme Court in the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd. 2009 (239) ELT 385 (S.C.) is not applicable to the facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h could not be foreseen by the appellant at the time he made delivery of those goods and thus, it cannot be considered as the retrospective revision of the price. Due to this observation only, I opine that the facts of present case are different from SKF India Ltd. (supra). The Hon ble Supreme Court in the case of Commissioner vs. Bharat Electricals Ltd. 2015 (318) E.L.T. A155 (SC) has held that since the price escalation was due to increase in input labour and other costs, which were determined by All India Industrial Price Indices and by Reserve Bank of India communicated by All India Electrical Manufacturer Association. Differential duty for relevant period was paid by appellant and supplementary invoices were issued. It was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d wherein it was observed that:- It is evident that Section 11AB comes into play if the duty paid/levied is short. Both, the Commissioner (Appeals) and CESTAT have observed that the assessee paid the duty on its own accord immediately when the revised rates became known to them from their customers. The differential duty was due at that time i.e. when the revised rates applicable with retrospective effect were learnt by the assessee, which was much after the clearance of the goods and, therefore, question of payment of interest does not arise as the duty was paid as soon as it was learnt that it was payable. Finding that provisions of Section 11A(2) and 11A(2-B) were not applicable as the situation occurred in the instant case was quite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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