TMI Blog2010 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of nor there was short payment thus interest not applicable. Question answered against revenue. - 54 of 2007 - - - Dated:- 9-4-2010 - K.L. Manjunath and BY. Nagarathna, JJ. REPRESENTED BY: Shri K.N. Mohan, Advocate, for the Appellant. Shri Lakshmi Kumaran, Advocate, for the Respondent. [Judgment per: B.V. Nagarathna, J.]. - The revenue has preferred this appeal by challenging the order dated 9.10.2008 passed in Final Order No. 1723/2006 by CESTAT at Bangalore, by raising the following substantial questions of law: (i) Whether the provisions for interest on delayed payment contained in Section 11AB are applicable only for duty determined under Subsection [2) of Section 11A or also for duty which has been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the said order the revenue has preferred this appeal. 3. We have heard the learned counsel for the appellant and the learned counsel for the respondent-assessee. 4. The main contention of the appellant is that when there was a variation in the price, duty had to be paid on the price variation (escalation) and the same had not been done, when the actual duty was paid and on account of the delayed payment, the Department was justified in issuing the show cause and also demanding interest and penalty for the said delayed payment of differential duty for the period from 1.4.2003 to 31.3.2004. He, therefore, submits that in terms of Section 11AB of the Central Excise Act, 1944, the demand made was justified and that the tribunal was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the first place, when there was actual removal of the goods and the appropriate duty has been paid bases on the price of the goods. In the second place, when there was a transaction when there was escalation in the cost of goods with regard to the said price variation also there had been a payment of duty and hence, there was no delay in payment of duty. Having regard to the contents of the show cause notice and the reply, we are of the view that in the first instance there has been no demand made for payment of duty. In fact, such a demand could not have been made considering the fact that the respondent-assessee had paid the duty on the difference in the price and therefore, the differential duty was paid for the relevant period. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een done which was held to be a short payment of duty as the differential duty was paid only later when the assessee issued supplementary invoices to the customers demanding the balance amounts. Under the said circumstances, the Apex Court held that it was a case of short payment of duty though it was not intentional and without any allegation of deceit. The facts of the present case are that after the goods were initially cleared and the appropriate duty had been paid subsequently, the price escalation was due to the increase in input labour and other costs which was determined by the All India Industrial Price Indices and by the Reserve Bank of India communicated by All India Electrical Manufacturers Association. In terms of the said dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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