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TMI Blog2022 (12) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... ce existing at the time of clearance, notwithstanding subsequent receipt of differential, interest under section 11AB of Central Excise Act, 1944 would have to be discharged for termination of proceedings under section 11A of Central Excise Act, 1944 - On the other hand, in COMMR. OF C. EX., BANGALORE-III VERSUS BHARAT HEAVY ELECTRICALS LTD. [ 2010 (4) TMI 439 - KARNATAKA HIGH COURT] , the principle established was that section 11AB of Central Excise Act, 1944 could not be invoked independently of section 11A of Central Excise Act, 1944 rendered superfluous owing to prompt discharge of tax liability on escalation of price. In the impugned proceedings, with confirmation of duty liability under section 11A of Central Excise Act, 1944, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e zarda , by deploying raw materials in specific proportions to obtain batches of 3165 kg, and had been clearing the same to their branches upon discharge of duties of central excise on cost for the period from April 1997 to December 2001 which the jurisdictional authority had held to have been incorrectly computed after exclusion of certain essential elements. The impugned order held that the value computed at ₹ 32 per kg for the period from 25th April 2001 to 29th October 2001, and at ₹ 36 per kg for the period thereafter till 31st December 2001, instead of ₹ 42.34 per kg in the revised CAS-4 prepared by the cost accountant of the appellant resulted in short-payment of duty which is not in dispute. The grievance of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential condition for not proceeding with demand under section 11A of Central Excise Act, 1944 stands decided by the Hon ble Supreme Court in re SKF India Ltd. 5. On perusal of the decision of the Hon ble of High Court of Karnataka in re Bharat Heavy Electricals Ltd holding that 6. Having heard the counsel on both sides and on perusal of the material on record, we find that the show cause notice issued on 19-10-2004 was not in respect of any demand made regarding non-payment of duty on account of there being a price variation, but the demand made was only with regard to delayed payment of duty and for payment of interest and penalty. To the said show cause notice, reply has been given by the assessee by contending that in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has however relied upon the decision of the Apex Court in the case of Commissioner of Central Excise, Pune v. SKF India Ltd. [2009 (239) ELT 385 (SC)] to contend that the said provision is applicable on the facts of the present case also. We have perused the said decision and we find that we are unable to accept the contention of the learned counsel for the appellant that the said case applies to the facts of the present case. It is to be noted that in the said decision, the facts were that the assessee had demanded from its customers, the balance of the higher price by virtue of the retrospective revision of the price and therefore, on the date the goods were cleared, the differential duty had to be paid and the same had not been done whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). But Explanation 2 to the sub-section makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11AB, that is, for the period from the first date of the month succeeding the month in which the duty ought to have been paid till the date of payment, of the duty. What is stated in Explanation 2 to sub-section (2B) is reiterated in Section 11AB that states where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the decision in re SKF India Ltd has firmly established the principle that arising from the liability for duties of central excise devolving on the assessee at the price existing at the time of clearance, notwithstanding subsequent receipt of differential, interest under section 11AB of Central Excise Act, 1944 would have to be discharged for termination of proceedings under section 11A of Central Excise Act, 1944. On the other hand, in re Bharat Heavy Electricals Ltd, the principle established was that section 11AB of Central Excise Act, 1944 could not be invoked independently of section 11A of Central Excise Act, 1944 rendered superfluous owing to prompt discharge of tax liability on escalation of price. 7. In the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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