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TMI Blog2013 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... lways against contract with price escalation clause. Though during the contract period, at the time of clearances to the railways the duty had been paid at the provisional price, which was subject to revision, the appellant had not gone in for provisional assessment. During period from 31-11-1992 to 31-8-1998 they raised 13 price escalation bills on railways for an amount of Rs. 1,93,41,855/- plus excise duty of Rs. 38,19,260/-. Though against these bills they received payment from the railways during May 1999 to August 1999 period, neither at the time of issue of the invoices for the price escalation amount nor at the time of receiving the payment they paid the duty on price escalation amount. This non-payment of duty on the price escalati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant against this order of the Commissioner, the Tribunal vide Final Order No. 370/2002, dated 7-8-2002 while upholding the duty demand alongwith interest and also upholding the imposition of penalty under Section 11AC, reduced the penalty to Rs. 2,00,000/-. With regard to interest, the Tribunal held that the interest liability would be only in respect of the duty demand for the period after 28-9-1996. 1.3 Against this order of the Tribunal, the department filed a Reference Appeal No. 3/2003 before Hon'ble Chhattisgarh High Court and Hon'ble High Court held that in view of the judgment of the Apex Court in the case of Union of India v. Dharamendra Textile Processors reported in 2008 (13) SCC 369 = 2008 (231) E.L.T. 3 (S.C.), there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under Section 11AC are present, the provisions of Section 11AC can be invoked only in respect of those clearances which had been made on or after 28-9-1996, the date on which Section 11AC had come into effect and the provisions of this Section cannot be invoked in respect of the clearances made prior to this date, that in this regard he relies upon judgment of the Apex Court in the case of CCE, Coimbatore v. Elgi Equipments Ltd. reported in 2001 (128) E.L.T. 52 (S.C.), wherein it was held that Section 11AC of Central Excise Act, 1944 is prospective in-operation and offences prior to insertion of the said section in this Act, cannot be subject matter of the penalty under said provisions, and that same view has been taken by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from June 1995 to 31-8-1998, the price differential on account of price escalation from back date was received by the appellant in the year 1999 and accordingly the duty had become payable at that time only. Since neither the duty was paid by the appellant nor the receipt of price differential was intimated by them to the Jurisdictional Central Excise officers, it is clear that the appellant have suppressed the relevant facts from the departments and, hence, the penal provisions of Section 11AC would be attracted. We also take note of the fact that the Tribunal in the final order dated 7-8-2002 has upheld the entire duty demand which had been confirmed by invoking extended period under proviso to Section 11A(1) and the conditions under whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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