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2015 (10) TMI 570 - CESTAT CHENNAI

2015 (10) TMI 570 - CESTAT CHENNAI - TMI - Demand of interest - belated payment of differential duty - Held that:- There is no demand of central excise duty as the appellants paid differential duty by self-assessment under Section 11A (2B). The adjudicating authority dealt the issue in detail at para 10 to 15 and clearly held that assessee are covered under sub-section (2B) of Section 11A of Central Excise Act. I find that when appellant could not quantify the value as per CAS, they ought to hav .....

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- SUPREME COURT). - issue relating to demand of interest on the differential duty paid stands settled by the apex court. By respectfully following the judgement of apex court, I hold that appellants are liable to pay interest demanded in the impugned order - Decided against assessee. - Appeal No. E/MISC/40205/2015 & E/812/2007 - Final Order No.40659/2015 - Dated:- 17-6-2015 - Shri R. Periasami, Technical Member, J. For the Petitioner : Ms. Karthika Prasad, Advocate For the Respondent : Shri B. B .....

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ted payment of differential duty by the appellant for the period from November 2005 to December 2006. Consequent on Tribunal's order dt.4.8.2005 wherein the Tribunal upheld merit of the case, the appellants on their own discharged the duty on the higher value and subsequently worked out correct value as per CAS-4 for every quarter and paid differential duty in the following month. The adjudicating authority issued notice dt.8.8.2007 demanding interest on the differential duty paid during the .....

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nding. Pending outcome of the decision of the Hon'ble Supreme Court, they started paying duty as per the Tribunal's order and worked out the value as per CAS-4 and paid the differential duty next month of every quarter. Therefore, there is no demand of interest. She submits that initially they have worked out the value as per their own method and calculated 110% of cost of production whereas the jurisdictional Superintendent of Central Excise has pointed that the CAS-4 value of the respe .....

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resent case appellants are discharging duty on self-assessment and paid differential duty. Therefore any belated payment of duty paid as per Section 11A (2B), interest is automatic and payable under section 11AB. Accordingly, interest has been rightly demanded. Appellants have not opted for provisional assessment. They started paying duty on their own on the higher value and subsequently they paid differential duty as per CAS-4 formula. He submits that interest is payable from the date of Tribun .....

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. The adjudicating authority dealt the issue in detail at para 10 to 15 and clearly held that assessee are covered under sub-section (2B) of Section 11A of Central Excise Act. I find that when appellant could not quantify the value as per CAS, they ought to have opted for provisional assessment. Instead they chose to pay differential duty for every quarter on self-assessment. Once the differential duty is paid it is covered under Section 11A (2B) and interest is automatic. In this regard, I rely .....

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und of duty in two categories. One in which the non-payment or short payment etc. of duty is for a reason other than deceit; the default is due to oversight or some mistake and it is not intentional. The second in which the non-payment or short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment of duty; that is to say, it is intenti .....

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of duty is not intentional under sub-section (2B). 10. Sub-section (2B) of Section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). But Explanation 2 to the sub .....

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o has paid the duty under sub-section (2B) of Section 11A, shall, in addition to the duty, be liable to pay interest .......It is thus to be seen that unlike penalty that, is attracted to the category of cases in which the non-payment or short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment of duty, under the scheme of the four S .....

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Pvt. Ltd., (First Appeal No. 42 of 2007) that was relied upon by the Tribunal for dismissing the Revenues appeal took the view that there would be no application of Section 11A (2B) or Section 11AB where differential duty was paid by the assessee as soon as it came to 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 Comm .....

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at provisions of Section 11A (2) and 11A (2B) were not applicable as the situation occurred in the instant, case was quite different, Section 11AB (1) was not at all applicable, and therefore, the Assessee was not required to pay interest. 13. It further held that a case 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 .....

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