2015 (11) TMI 206 - AT - Central Excise

Demand of interest on payment of differential duty - price escalation clause - Supplementary invoices - diversion decisions on the issue - Held that - in case of Bharat Heavy Electricals Ltd. (2010 (4) TMI 439 - KARNATAKA HIGH COURT ) the facts are absolutely identical to the facts of the present case. As the supply made to the railways and the prices at the time of clearances is not decided due to the reason that the price index which is published periodically and not available on day to day basis. The finalization of price takes place only after publication of RBI price index as per escalation and de-escalation clause. The supplementary invoices are raised subsequent to the clearance of the goods only after RBI publication of the price index therefore payment of excise duty is not made at the time of clearance of goods. In all other cases which was relied upon by the Revenue facts are different. Therefore when there are diversion decisions on the issue then in my view the judgment which is based on the identical facts has to prevail. In this position following the ratio of Hon ble Karnataka High Court in the case of Bharat Heavy Electricals Ltd. (supra) which has been upheld by the apex court 2010 (12) TMI 1144 - SUPREME COURT I am of the view that interest on difference arising due to the price escalation as per the RBI price index the interest on duty is not chargeable therefore impugned order is set aside - Decided in favour of assessee.

Summary

Issues:
- Challenge against demand of interest under Section 11AB in respect of duty paid subsequent to the clearance of goods due to price variations as per contract.
- Interpretation of legal provisions regarding interest on delayed payment of duty through supplementary invoices.

Analysis:

Issue 1: Challenge against demand of interest under Section 11AB
The appeals were filed challenging the demand of interest under Section 11AB in relation to duty paid after the clearance of goods due to price variations as per the contract. The appellant argued that the duty itself becomes payable only when the price index is published and supplementary invoices are issued, as the final price cannot be determined at the time of goods clearance. The appellant relied on the judgment of the Hon'ble Karnataka High Court in the case of Commr. of C. Ex., Bangalore-III Vs. Bharat Heavy Electricals Ltd., which was upheld by the Hon'ble Supreme Court. The appellant contended that interest on differential duty cannot be demanded for the period between clearance and issuance of supplementary invoices as the differential value only arises at the time of issuing such invoices.

Issue 2: Interpretation of legal provisions on interest on delayed payment
The Assistant Commissioner for the Revenue argued that interest is demanded for delayed payment of duty, citing the judgment of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd. The Revenue also presented judgments such as Endurance Technologies Pvt. Ltd. Vs. CCE, Gammon India Ltd. Vs. CCE, and Alstom T&D India Ltd. Vs. CESTAT to support their position. However, the Member (Judicial) analyzed the various judgments passed by different courts and found that the facts in the case at hand were similar to those in the Bharat Heavy Electricals Ltd. case. The finalization of price was dependent on the RBI price index, leading to the issuance of supplementary invoices after goods clearance. As the facts in other cases cited by the Revenue were different, the judgment based on identical facts was deemed to prevail. Therefore, following the ratio of the Hon'ble Karnataka High Court in the Bharat Heavy Electricals Ltd. case, which was upheld by the apex court, the Member (Judicial) concluded that interest on duty arising from price escalation as per the RBI index was not chargeable.

In conclusion, the impugned order was set aside, and the appeals of the appellants were allowed, with any consequential relief to be granted in accordance with the law.