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TMI Blog2021 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2019 (5) TMI 657 - SUPREME COURT] . Accordingly, interest under Section 11AB needs to be paid by the appellant on the differential amount of duty. Whether Cenvat credit can be utilized for payment of duty in view of the proviso to Rule 3 (4) of the Cenvat Credit Rules, 2004? - HELD THAT:- The High Court of Gujarat in ADVANCE SURFACTANTS INDIA LTD VERSUS UNION OF INDIA [ 2017 (8) TMI 594 - GUJARAT HIGH COURT] has held that this proviso is ultravires. No judgment of any other High Court or Supreme Court has been produced before us to show that a contrary view has been taken in respect of this proviso. Therefore, the appellant was correct in ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices were raised and, therefore, they are relatable to the clearances already made during the previous months. As per the proviso to Rule 3 (4) of Cenvat Credit Rules, 2004 and proviso to Rule 3 (3) of Cenvat Credit Rules, 2002, the appellant could not have used Cenvat credit, which was taken after the last day of month for payment of duty relating to that month. Therefore, the assessee/ appellant was called upon to pay the differential central excise duty on the supplementary invoices in cash and not using Cenvat credit. It was also proposed to demand, interest at the appropriate rate under Section 11AB of the Central Excise Act, 1944 for late payment of excise duty. It was also proposed to impose a penalty upon the appellant under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51) E.L.T. 255 (Tri. Bang.) ] in which it was held:- 5.4 From the mere reading of the above said provisions as regards supplementary invoices, we find that the supplementary invoice is raised by the manufacturer or importer in case of liability of additional amount of excise duty. That would mean that the duty liability has arisen in this case in the month of November, 2006, that is to say on the date the supplementary invoices were issued. If that be so, any duty liability to be discharged by the appellant would be considered as duty to the Revenue only in the month of November, 2006. It is undisputed in this case that in the month of November, 2006, the appellant had enough credit in RG 23A Part-II and RG 23C Part-II to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than abundantly clear because Section 4(1) of the Act fastens charge on transaction value, i.e. value placed on the goods at the time of transaction. 5. If at the given point of time when the transaction took place the additional price was not fixed, the liability of the buyer to pay the additional amount was not known to the buyer, mere existence of an escalation clause in the contract between the parties cannot bring the subsequent escalation within the meaning of the definition for the purposes of levying interest. Duty of excise would become payable even subsequently in point of time and that is the admitted position between the parties, the respondent-assessee having already discharged that liability. 5.5 We find that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules as unconstitutional, in accordance with law and on its own merits. Rule is made absolute to the aforesaid extent. No order as to costs . 9. The third argument of the appellant is regarding the interest under Section 11AB. It is the assertion that since the duty is relatable to the date of supplementary invoices, no interest is payable. 10. The last submission of the appellant is that no penalty is imposable under Rule 25 of Central Excise Rules, 2002 and Rule 15 of Cenvat Credit Rules, 2004 as there was no violation of any Act or Rules and they had paid the duty on such supplementary invoices when they raised. 11. Learned Departmental Representative supports the impugned order. With respect to the first question of relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surfactants India Ltd. has held that this proviso is ultravires. No judgment of any other High Court or Supreme Court has been produced before us to show that a contrary view has been taken in respect of this proviso. Therefore, we find that the appellant was correct in utilizing the Cenvat credit for payment of the excise duty. 15. On the third question of imposition of penalty, we find from the facts of the case that the assessee has not violated any provision of the Act or the Rules to attract penalty under Rule 25 of the Central Excise Rules, 2002. The appellant on its own had paid the differential duty on the supplementary invoices which were raised. 16. In view of the above, the impugned order is modified, as follows : (a) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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