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2015 (5) TMI 134 - CESTAT CHENNAI

2015 (5) TMI 134 - CESTAT CHENNAI - TMI - Demand of interest on the differential duty - Penalty under Rule 25(1) (a) of CER, 2001 - Interest under Rule 7(4) of CER, 2002 - Provisional assessment - held that:- Appellants paid differential duty on the amount of escalation of price and raised supplementary invoices to their customers - Respondents are liable for payment of interest and accordingly the impugned order is liable to be set aside to the extent. However, taking into the overall facts of .....

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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/1060/2005 The brief facts in this appeal is that Department demanded interest on the .....

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nts filed appeals against both the orders and in the impugned orders dated 22/09/05 and 28.02.06, the Commissioner (Appeals) set aside the orders and allowed the appeals with consequential relief. Revenue filed appeals against the impugned orders. 5. Ld. AR on behalf of the Revenue reiterated the grounds of appeals and submits that interest is payable from the date on which the duty amount is due as per Rule 7(4) of CER,02. Interest is payable from the first day of the month succeeding the month .....

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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 .....

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le 7(4) stipulates that interest is payable only on the differential duty if any payable and not paid on the date of determination of final assessment till the date of payment of such amount. He relied upon the following case laws in support of his contention: 1. Ispat Industries Ltd. Vs. CCE, Nagpur 2007 (209) ELT 280 2. CCE, Nagpur Vs. Ispat Industries Ltd 2010 (259) ELT 662 3. Commissioner v. Ispat Industries Ltd 2014 (301) ELT A70 (S.C) 4. Tata Motors Ltd. Vs. CCE, Pune. 2008 (226)ELT 563 (T .....

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e on the fact that the appellants paid differential duty on the amount of escalation of price and raised supplementary invoices 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 r .....

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o learn about the upward revision of prices of goods sold earlier. In M/s. Rucha Engineering the High Court observed as follows: It is evident that the Section (11AB) comes into play if the duty paid/levied is short. Both, the Commissioner (Appeals) and the CESTAT have observed that the Assessee paid the duty on its own accord immediately when the revised rates became known to them from their customers. The differential duty was due at that time i.e. when the revised rates applicable with retros .....

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se of this nature would not fall in the category where duty of excise was not paid or short-paid. 14. We are unable to subscribe to the view taken by the High Court. It is to be noted that: the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, follows that at 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 whe .....

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