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TMI Blog2023 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of differential duty on the supplementary invoices due to revision in prices invariably reflected the same in their ER1 returns filed with the department from time-to-time. Thus, calling for the data by the Revenue again which already mentioned in the respective ER-1 Returns and non-furnishing of the same by the appellant in time, cannot be held as a ground to uphold the suppression of facts in the form of data from the knowledge of the department - it has been observed that on declaration of the differential duty paid by reflecting the same in the relevant monthly returns filed with the department from time-to-time, would not fall within the scope of suppression of fact and accordingly, extended period of limitation was set aside in those cases. With regard to applicability of period of limitation for recovery of interest incorporated at sub-section (15) in Section 11A of CEA, 1944 with effect from 08.4.2011, the demand of interest can be sustained only for the normal period. The impugned order is modified to the extent of confirming recovery of interest for the normal period. Since there is no suppression of fact, the imposition of penalty, in the circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the judgment of the Hon ble Supreme Court in the case of MRF Ltd.: 1997 (92) ELT 309 (SC), they are not at all required to pay the differential Central Excise duty, hence, there is no question of payment of interest also. They have also referred to the judgment of the Hon ble Karnataka High Court in the case of Bharat Heavy Electricals Ltd.: 2010 (257) ELT 369 (Kar.-HC) wherein it has been held that when price is revised retrospectively, no interest is payable. Further, he submits that recovery of interest be limited to the period of one year as there is no suppression of facts. The differential duty paid has been reflected in the monthly returns filed with the Department. Thus, the extended period of limitation cannot be invoked. In support, he referred to the judgments rendered in the case of Gujarat State Fertilisers Chemicals Ltd.: 2013-TIOL-845 and Hindustan Insecticides Ltd.: 2013 (297) ELT 332 (Del.). Further, he submitted that in any case, no penalty is imposable for non-payment of interest. 4. Per contra, learned Authorised Representative for the Revenue submits that appellant had raised supplementary invoices and discharged differential duty on the revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second in which the non-payment or short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment of duty ; that is to say, it is intentional, deliberate and/or by deceitful means. Naturally, the cases falling in the two groups lead to different consequences and are dealt 10 with differently. Section 11A, however allow the assessees in default in both kinds of cases to make amends, subject of course to certain terms and conditions. The cases where the non-payment or short payment etc. of duty is by reason of fraud collusion etc. are dealt with under sub-section (1A) of section 11A and the cases where the non-payment or short payment of duty is not intentional under sub-section (2B). 10. Sub-section (2B) of section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month. Interpreting the words in the manner contemplated by the Bench which referred the matter would result in doing violence to the provisions of the Act and 112 the Rules which we have interpreted. We have already noted that when an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value consequently, the duty and interest dates back to the month for which the duty is determined. Duty and interest is not paid with reference to the month in which final assessment is made. In fact, any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions. It may be true that the differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on revision of prices, has been periodically reflected in their respective monthly ER-1 returns, therefore, no fact was suppressed from the knowledge of the Department, accordingly, extended period of limitation is not applicable to their case. In support, he referred to the judgement of the Hon ble Delhi High Court in the case of Hindustan Insecticides Ltd. Vs. CCE, LTU: 2013 (297) ELT 332 (Del.) followed by Punjab and Haryana High Court in the case of Neel Metal Products Ltd. Vs. CCE, Delhi-III: 2014 (11) TMI 497 (P H). 7. We find that the appellant on payment of differential duty on the supplementary invoices due to revision in prices invariably reflected the same in their ER1 returns filed with the department from time-to-time. Thus, calling for the data by the Revenue again which already mentioned in the respective ER-1 Returns and non-furnishing of the same by the appellant in time, in our considered opinion cannot be held as a ground to uphold the suppression of facts in the form of data from the knowledge of the department. We find that in the aforesaid judgments, it has been observed that on declaration of the differential duty paid by reflecting the same in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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