TMI Blog2015 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... are not liable for any penalty By respectfully following the Apex Court judgment [2009 (7) TMI 6 - SUPREME COURT] and also the Tribunal s decision in the respondents own case [2015 (5) TMI 115 - CESTAT CHENNAI], Revenue’s appeal is rejected and the impugned order is upheld - Decided partly in favour of assessee. - E/1060/2005 & E/356/2006 - Final Order No. 40459-40460 / 2015 - Dated:- 24-4-2015 - Hon ble Shri R. Periasami, Technical Member,J. For the Appellant : Shri B. Balamurugan, AC (AR) For the Respondent : Shri S. Raghu, Adv. ORDER Revenue filed both the appeals against OIA s dated 28.09.2005 and 28.02.2006. As the issue involved is common in both the appeals, both are taken up together for disposal. 1. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudication order. 6. On the other hand, Ld. Advocate for the respondents reiterated the findings of the OIAs. He submits that in respect of appeal E/1060/05 there is no provisional assessment but it is under normal assessment and payment of differential duty where the supplementary invoices were raised due to escalation in the price. He fairly admitted the demand of interest in view of Apex Court decision in the case of SKF Ltd. and only pleads that waiver of penalty as there is no intention to evade interest due to several conflicting decisions of Tribunals. It is both in favour and on the payment of interest. 7. In the case of appeal E/356/06, he submits that it relates to finalization of provisional assessment for the period Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices to their customers. On the payment of interest the law is already settled by the Hon ble Supreme Court in the case of CCE Vs. SKF India Ltd. (supra). The relevant portion of the Apex Court s order is reproduced as under:- 11. The payment of differential duty by the assessee at the time of issuance of supplementary invoices to the customers demanding the balance of the revised prices clearly falls under the provision of sub-section (2B) of Section 11A of the Act. 12. The Bombay High Court, Aurangabad Bench, in its decision in The Commissioner of Central Excise, Aurangabad v. M/s. Rucha Engineering Pvt. Ltd., (First Appeal No. 42 of 2007) that was relied upon by the Tribunal for dismissing the Revenue s appeal took the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of sale the goods carried a higher value and those were cleared on short payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus it was clearly a case of short payment of duty though indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of Section 11A and attracted levy of interest under Section 11AB of the Act. 15. for the reasons discussed above we set aside the judgments and orders passed by the Tribunal and the Commissioner (Appeals). We restore the order passed by the Assistant Commissioner in so far as charge of interest is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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