TMI Blog2015 (1) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the accounts and accordingly, there is no suppression or any intention to evade duty etc. on the part of the appellant. In this view of the matter, the show-cause notice is held to be time barred as the appellant is not liable to pay the duty in case of completed export on raising of supplementary invoice. At the subsequent point of time, there can be no demand of any interest for the same when duty itself is not payable. Thus, the impugned order is set aside - Decided in favour of assessee. - Appeal No. E/2079/10 - Final Order No. A/1330/2014-WZB/C-IV(SMB) - Dated:- 19-9-2014 - Anil Choudhary, J. For the Appellant : Shri P K Shetty, Adv. For the Respondent : Shri S Dewalwar, Addl. Commissioner (AR) JUDGEMENT Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement and also paid excise duty on the differential amount by raising supplementary invoice in Sept, 07. The appellant had received the export proceeds against the supplementary invoice from the said M/s Acumen Enterprises only on 13.12.2007 and filed a supplementary rebate claim for ₹ 7,66,169/-. The Revenue issued a show-cause notice alleging that duty is required to be paid in terms of Section 4 on the transaction value at the time and place of removal and it includes, in addition to the amount charged as price, any amount which the buyer is liable to pay at the time of sale or any other time. Further, as per Section 4(3)(d) of the Central Excise Act, transaction value means the price actually paid or payable for the goods when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Calcutta Bench held that interest starts from the date of the final assessment of tax and not from the due date of returns. It was further pleaded that under Section 11B, as amended w.e.f. 11.5.2008, refund of interest paid under the provisions of Act and Rules is provided. Thus, if the interest is paid the same is refundable under Section 11B in case of export and hence, this situation being revenue neutral and accordingly, no demand of interest is sustainable on the additional duty, based on supplementary invoices from the date of original invoice to the date of supplementary invoice. 2.2 The show-cause notice was adjudicated vide Order-in-Original dated 23.8.2009, the appellant was held to be liable to pay interest of ₹ 80,55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue and differential duty was paid subsequently, which is not consequently contested. Further reliance was placed on the ruling in the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd. - 2009 (239) ELT 385 (SC), wherein the Court considered waiver of show-cause notice when duty was paid before issue of notice but such payment not exempt from interest chargeable under Section 11AB of the Act, penalty is attracted in case of non-payment or short payment due to fraud, collusion, etc., but interest is chargeable in whatever be the reasons. 3. Being aggrieved, the appellant assessee is in appeal before this Tribunal on the ground that Commissioner (Appeals) have erred in rejecting the appeal citing the two judgments without con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been done earlier to the date of supplementary invoice in Sept. 07, the goods had already been exported and the duty paid mistakenly on the supplementary invoice being refundable, there can be no legal claim of interest by the Revenue from the date of clearance for export to the date of supplementary invoice or duty wrongly paid. Further, reliance is placed on the Circular No. 283/117/96-CX dated 31.12.1996 of CBE C, wherein it is clarified that the export under claim of rebate' and export under Bond' should be at parity since intention of both the procedure are to remove duty incidence only. Accordingly, the Commissioner (Appeals) has erred in not considering the ratio of the Circular and thus, the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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