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2015 (12) TMI 594 - SUPREME COURT

2015 (12) TMI 594 - SUPREME COURT - 2015 (326) E.L.T. 450 (SC) - Demand of interest - Supplementary invoices - whether interest is leviable under Section 11AB of the Act on the differential duty amount paid under supplementary invoices due to price increase by virtue of price variation clause in the sale contract - Held that:- Bench did not consider the effect of the expression 'ought to have been paid' occurring in Section 11AB of the Act. It is undeniable that under Section 4 of the Act, the e .....

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ise duty becomes payable as a result of said differential in price. Further, such an event took place at a subsequent date. As on the date when the goods were cleared, there was no certainty that there would be price escalation and it was beyond comprehension to ascertain the exactitude of such an escalation. It would be impossible to expect the assessee to pay the excise duty, at the time of clearance of the goods, on the basis of price escalation that took place at a later date in future. Ther .....

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hich is of seminal importance having far reaching ramifications. - Matter referred to larger bench. - Civil Appeal Nos. 2150 of 2012, Civil Appeal No. 2562 of 2012, Civil Appeal No. 599 of 2013, Civil Appeal No. 600 of 2013, Civil Appeal Nos. 1522-1523 of 2013 - Dated:- 7-12-2015 - A. K. Sikri And Rohinton Fali Nariman, JJ. JUDGMENT A. K. Sikri, J. In all these appeals, identical question of law is involved and for the sake of brevity, we are discussing the question of law by taking note of the .....

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se duty as per the price disclosed by the assessee in the invoices issued at the time of the removal of the goods. Goods in this manner were supplied during the period January, 2005 to July, 2006 which period is involved in the instant appeal. It so happened that there was an upward revision in the price by the Railways in August, 2006 covering the period in question. On that basis, assessee was paid the price difference on the fixation of enhanced consideration for the goods supplied. The asses .....

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nue has been upheld by the Authorities below including Custom Excise and Service Tax Appellate Tribunal (hereinafter referred to as the 'Tribunal'). 3. The question, thus, that arises for consideration in these appeals is as to whether interest is leviable under Section 11AB of the Act on the differential duty amount paid under supplementary invoices due to price increase by virtue of price variation clause in the sale contract. Now, facts in some detail: The assessee is engaged in the m .....

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s are in terms of purchase orders received from the customers. The assessee sold the rails to the Indian Railways in terms of the Price Circular No. LP-06 of 2005 dated 24.02.2005 w.e.f. 01.07.2004. In terms of the prices quoted in the purchase orders, the assessee discharged central excise duty at the time of removal of the rails to the Indian Railways. Such price was the transaction value of the goods in terms of Section 4 of the Act at the given time. In terms of the price variation clause an .....

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t, 2006 under intimation to the Departmental Authorities. 4. In the above background, on a scrutiny of ER-1 return filed by the assessee for the month of August, 2006, a show cause notice dated 01.06.2007 was issued to the assessee contending that in respect of the differential duty of ₹ 142.78 crores paid in August, 2006, the assessee are required to pay an interest of ₹ 15,51,81,231/- under Section 11AB of the Act. The notice alleged that since the price was not correctly determine .....

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avention of Rules 7 and 8 of the Rules. 5. The assessee filed detailed reply dated 17.10.2007 challenging the allegations contained in the show cause ntoice and contending that no interest is payable on the differential duty paid on account of price variation. 6. The Commissioner of Central Excise, Raipur passed order dated 31.10.2007 confirming the amount of interest proposed in the show cause notice and also imposing penalty of ₹ 2,00,000/-. Against the order dated 31.10.2007 passed by t .....

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price declared in the said invoice was the transaction value of the goods in terms of Section 4 of the Act inasmuch as that was the price fixed between the parties at which the goods were to be supplied at the time and place of removal. The occasion for differential duty arose at a later date due to price variation clause in the contract for sale. The moment the assessee received the enhanced price due to price escalation, it paid differential duty on its own immediately on receipt of the said .....

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ld not be attracted at all inasmuch as, by no stretch of imagination, it can be treated that on the date of removal of the goods when the duty was paid as per the price fixed at that time, it is now to be treated as 'short paid' only because of the occurrence of an event at a later date which could not be visualised or taken into consideration at the time of removal of these goods. 9. For proper understanding of the matter, we may reproduce provisions of Section 11AB of the Act at this s .....

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ication in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of Section 11A till the date of payment of such duty: Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under Section 37B, and such amount .....

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d before the date on which the Finance Bill, 2001 receives the assent of the President. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, the interest shall be payable on such reduced amount of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, the interest .....

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sed duty determined to be payable by Commissioner (Appeals) or Appellate Tribunal etc. 11. Before proceeding further, we would like to point out that we are not treading on a virgin territory, inasmuch as the provisions of Section 11AB of the Act have already been interpreted by this Court in two judgments under almost similar circumstances. These are: (a) CCE v. SKF India Ltd. (2009) 13 SCC 461 (b) CCE v. International Auto Limited. (2010) 2 SCC 672 12. In SKF India Ltd. case, the assessee was .....

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ential duty. This factual position would reflect that it was almost same that prevails in the present appeals. Though, the demand made in Order-in-Original was set aside by the Commissioner (Appeals) and the order of the Commissioner (Appeals) was upheld by the CESTAT holding that no interest was chargeable where there was time gap between the payment of differential duty and issuance of supplementary invoices to the customers on the basis of upward revision of prices in respect of the goods sol .....

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equences of failure to discharge the obligations cast by the law then the four sections of the Act fall miles short of the desired objective. Even as originally cast the provisions were far from very happily framed and worded. Subjected to amendments from time to time those provisions have now become so complicated that in order to discern their meaning it becomes necessary to read them back and forth several times. 10. We see no reason why the two periods for which interest is leviable may not .....

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f the judgment of High Court of Bombay in CCE v. Rucha Engg. (P) Ltd. First Appeal No. 42 of 2007 decided on 03.04.2007 wherein the Bombay High Court had held that Section 11AB of the Act is not applicable in such a situation. The Court, however, rejected the aforesaid view of the Bombay High Court. We would like to reproduce the relevant discussion touching the aforesaid aspect, as contained in the judgment: 11. Section 11-A puts the cases of non-levy or short-levy, non-payment or short-payment .....

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say, it is intentional, deliberate and/or by deceitful means. Naturally, the cases falling in the two groups lead to different consequences and are dealt with differently. 12. Section 11-A, however allow the assessees-in-default in both kinds of cases to make amends, subject of course to certain terms and conditions. The cases where the non-payment or short-payment, etc. of duty is by reason of fraud, collusion, etc. are dealt with under sub-section (1-A) of Section 11-A and the cases where the .....

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1). But Explanation 2 to the sub-section makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11-AB, that is, for the period from the first date of the month succeeding the month in which the duty ought to have been paid till the date of payment of the duty. 14. What is stated in Explanation 2 to sub-section (2-B) is reiterated in Section 11-AB that states where any duty of excise has not been levied or paid or has been short-levied or short-paid .....

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t of duty , under the scheme of the four Sections (11-A, 11-AA, 11-AB and 11-AC) interest is leviable on delayed or deferred payment of duty for whatever reasons. 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 (2-B) of Section 11-A of the Act. 15. The Bombay High Court, Aurangabad Bench, in its decision in CCE v. Rucha Engg. (P) Ltd., ( .....

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ioner (Appeals) and 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 retrospective effect were learnt by the assessee, which was much after the clearance of the goods and, therefore, question of payment of interest does not arise as the duty was paid as soon as it was learnt that it was payable. Finding that pro .....

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ts 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 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. T .....

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ers with the assessee. Since price difference arose between the price on the date of removal and the enhanced price at which the goods stood ultimately sold, the Department issued show cause notice proposing to levy interest on the differential duty, paid by the assessee, under Section 11-AB of the Act. The assessee took up the defence that prices indicated in the purchase order were final and not liable to change at the time of removal of the goods and, thus, it was not the case of 'short l .....

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t a sea change when Parliament inserted major changes in that section vide Act 14 of 2001 (with effect from 11-5-2001) and Act 32 of 2003 (with effect from 14-5-2003). It needs to be mentioned that simultaneously Act 14 of 2001 also made changes to Section 11-AB of the Act. 7. In SKF India Ltd., (2009) 13 SCC 461, it has been, inter alia, held, as can be seen from the abovequoted paragraphs, that sub-section (2-B) of Section 11-A provides that the assessee in default may make payment of the unpa .....

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ayment of duty. 8. From the scheme of Section 11-A(2-B) and Section 11-AB of the Act, it becomes clear that interest is levied for loss of revenue on any count. In the present case, one fact remains undisputed, namely, accrual of price differential. What does differential price signify It signifies that value, which is the function of the price, on the date of removal/clearance of the goods was not correct. That, it was understated. Therefore, the price indicated by the supplementary invoice is .....

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er insertion of Act 14 of 2001 and Act 32 of 2003, the judgment of this Court in MRF Ltd. would not apply. That judgment was on interpretation of Section 11-B of the Act, which concerns claim for refund of duty by the assessee. That judgment was in the context of the price list approved on 14-5-1983. In that case, the assessee had made a claim for refund of excise duty on the differential between the price on the date of removal and the reduced price at which tyres were sold. The price was appro .....

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the assessee became liable to payment of duty on the date of removal and subsequent reduction in the prices for whatever reason cannot be made a matter of concern to the Department insofar as the liability to pay excise duty was concerned. 10. In the present case, we are concerned with the imposition of interest which, as stated above, is charged to compensate the Department for loss of revenue. Be that as it may, as stated above, the scheme of Section 11-A of the Act has since undergone substa .....

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licable as the aforesaid cases were distinguishable. His alternate submission was that these judgments do not correctly interpret the provisions of Section 11AB of the Act and, therefore, matter required a fresh look by a Larger Bench. 16. It is difficult to accept the first submission. As already pointed out above, the factual scenario in which the aforesaid two cases were decided were similar, nay, almost identical. When this Court on the basis of same type of events interpreted the provisions .....

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be two distinct types of transactions: (a) where the price of the goods is 'fixed' at the time and place of removal, and as a result of subsequent negotiations (often protracted) the price is retrospectively revised by the buyer; (b) where the price at the time and place of removal is 'not fixed' (price subject to escalation clause), and the final price is agreed between the seller and buyer subsequently. According to him in the cases falling in the first category, even the diff .....

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learned counsel for the assessee admits that in non-fixed price scenario, differential duty is liable to be paid on subsequent revision of price which the assessee had already paid the differential duty at or about the time when revised price was agreed upon by the seller and the buyer. The question, however, is as to whether interest thereon is payable from the date of clearance of goods when duty was paid on the basis of invoice, till the date when differential duty was paid. 19. Starting from .....

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'paid' or 'agreed to be paid' by the buyer of the goods. We find force in the argument of the assessee that the expression 'ought to have been paid' in Section 11AB has to be understood in this light. Thus, for the purposes of Section 11AB, the expression 'ought to have been paid' would mean the time when the price is agreed upon by the seller and the buyer. In other words, the right of the seller to receive the revised price crystallises only when the buyer agre .....

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r and it ought to have been paid only at that time and not before. 20. One has also to keep in mind the difference between 'what should be the quantum of duty to be paid' and 'when such duty is payable'. In the cases price revision, the quantum of duty would be on the escalated price but the time for payment of differential duty is when the parties agree for the escalation in prices. On that reckoning, it would follow that interest clock for differential duty will start ticking f .....

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expression 'ought to have been paid' occurring in Section 11AB of the Act. It is undeniable that under Section 4 of the Act, the excise duty is to be paid on the 'transaction value' and such a transaction value has to be seen at the time of clearance of the goods. Indubitably, when the goods were cleared, the excise duty was paid taking into consideration the price that was actually charged and was reflected in the invoices raised for the said purpose. The Department cannot plea .....

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see to pay the excise duty, at the time of clearance of the goods, on the basis of price escalation that took place at a later date in future. Therefore, as on the date of clearance when excise duty was paid, it could not be treated as 'short paid' on the said date. As a consequence when the principal amount, namely, the excise duty itself was not payable (i.e. on the differential) on the date of clearance of the goods, there cannot be any question of law to pay interest. 22. No doubt, o .....

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ed was that there is a loss of revenue to the Government and, therefore, the Government should compensate for that. It proceeds on the basis that the price which was originally stated at the time of removal of the goods was 'understated' (para 8 of International Auto). However, value of the goods for the purpose of duty is 'at the time of removal', as emphasised above which remains fundamental principle from the inception of the Central Excise Act originally enacted in 1944 and r .....

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vide Act 14 of 2001 w.e.f. 11.05.2001, Act 32 of 2003 w.e.f. 14.05.2003 and Act 14 of 2001 whereby Section 11AB of the Act was also amended. However, we are of the opinion that amendments made to Section 11A in 2001 and 2003 have nothing to do with the valuation of the goods based on 'the price at the time of removal'. MRF was a case where a particular price was charged by the said assessee from the buyer on the date of removal and excise duty paid thereupon. However, thereafter this pr .....

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ndicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. CCE (1986) 25 ELT 69 (Trib.) and it seems to us that the Tribunal's view that the duty is chargeable at the rate and price when the commodity is cleared .....

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ing more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price. That being so, we see no merit in this appeal brought by the assessee and dismiss the same with no order as to costs. We, thus, are of the view that principle laid down in MRF Ltd. would continue to prevail. 25. Mr. Lakshmikumaran argued, and .....

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of Associated Cement Company Limited v. Commercial Tax Officer, Kota and Others (1981) 4 SCC 578 wherein majority view was that interest claimed on unpaid tax dues could be charged as it was compensatory in character and not penal. Bhagwati, J. had, however, dissented giving various reasons, one of which was that tax which has yet to be ascertained through the process of ascertainment could not be treated as tax payable from the date of submission of the return and, therefore, no interest could .....

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loss occasioned to the Revenue due to delay. But then interest was charged on the strength of a statutory provision may be its objective was to compensate the Revenue for delay in payment of tax. But regardless of the reason which impelled the Legislature to provide for charging interest, the Court must give that meaning to it as is conveyed by the language used and the purpose to be achieved. Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax .....

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ted v. Commissioner of Income Tax, Bombay (1965) 2 SCR 908 wherein the Court sounded caution and stated the restraint that has to be exercised while dealing with the question as to whether earlier decisions of this Court should be reconsidered and revised. The Court observed that merely because two views are possible should not be a reason to review the earlier judgment as it was necessary to maintain consistency and depict certainty in law. At the same time, Court made the following remarks: .. .....

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