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M/s. Malu Sleepers (Maharashtra) Pvt. Ltd. Versus Commissioner of Central Excise & Customs, Pune-II

2015 (11) TMI 206 - CESTAT MUMBAI

Demand of interest on payment of differential duty - price escalation clause - Supplementary invoices - diversion decisions on the issue - Held that:- in case of Bharat Heavy Electricals Ltd. (2010 (4) TMI 439 - KARNATAKA HIGH COURT ), the facts are absolutely identical to the facts of the present case. As the supply made to the railways and the prices at the time of clearances is not decided due to the reason that the price index which is published periodically and not available on day to day b .....

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hich is based on the identical facts has to prevail. In this position, following the ratio of Hon'ble Karnataka High Court in the case of Bharat Heavy Electricals Ltd. (supra) which has been upheld by the apex court [2010 (12) TMI 1144 - SUPREME COURT], I am of the view that interest on difference arising due to the price escalation as per the RBI price index the interest on duty is not chargeable, therefore impugned order is set aside - Decided in favour of assessee. - APPEAL NO. E/1328, 1329/1 .....

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se Act, 1944, set aside the order imposing penalty of ₹ 5000/- under Rule 27 of the Central Excise Rules, 2002. 2. The appellant filed these appeals challenging the demand of interest under Section 11AB in respect of duty paid subsequent to the clearance of the goods due to the variations in price as per escalation and de-escalation clause in the contract. 3. Shri Suresh Singh, Ld. Cost Accountant for the appellant submits that this is not the case of delay in payment of excise duty. In th .....

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index and therefore price of the goods cannot be finally fixed at the time of clearance of the goods, for this very reason escalation and de-escalation clause was provided in the contract. On publication of price index if there is variations in price on higher side then the appellant is required to issue supplementary invoices to the railways and at the time of issuance of supplementary invoices differential excise duty is paid. It is his submission that in view of the above undisputed position .....

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n the case of Commr. of C. Ex., Bangalore-III Vs. Bharat Heavy Electricals Ltd.[2010(257) ELT 369 (Kar)] which has been upheld by the Honble Supreme Court by dismissing the Revenues SLP No. CC-17917/2010 as reported in [2015 (318) E.L.T. A155 (S.C.)] therefore the issue under particular fact regarding the demand of interest on the supplementary invoices has been settled finally. He prays for setting aside the impugned order and allow the appeal. 4. On the other hand, Shri V.K. Shastri, Ld. Ass .....

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