TMI Blog2016 (6) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue referred to the Larger Bench is decided in the case of M/s. Steel Authority of India Ltd. [2015 (12) TMI 594 - SUPREME COURT]. - Decided in favor of revenue. - D.B. CENTRAL EXCISE APPEAL NO.10/2016 - - - Dated:- 18-5-2016 - MR. M.N.BHANDARI AND MR. J.K.RANKA, JJ. For The Revenue : MrAjay Shukla For The Assessee : Mr.Pancham Surana, Mr.Achintya Kaushik By the Court : By this excise appeal, a challenge is made to the order dated 14th July, 2015 passed by Customs, Excise Service Tax Appellate Tribunal (for short the Tribunal ). A short controversy involved in the present matter is regarding limitation for addition of interest after submission of supplementary invoices. Learned counsel appearing for the revenue has referred two judgments of the Apex Court on the issue. The first judgment is in the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd. reported in (2009) 13 SCC 461 and other is in the case of Commissioner of Central Excise Vs. International Auto Ltd. reported in 2010 (250) ELT 3 (SC). Therein, the issue has been decided in favour of the revenue and interest was made admissible for the entire period. Accordingly, a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether the extended period of limitation is invokable or not. We find that the same very issue was considered and decided by the Apex Court in the case of International Auto Ltd. (supra). Relevant part of the said judgment is quoted hereunder for ready reference : 7. We find no merit in the submissions advanced on behalf of the assessee. The controversy arising in this civil appeal is squarely covered by the judgement of this Court in the case of Commissioner of Central Excise, Pune v. SKF India Limited reported in [2009] 239 E.L.T.385. We quote hereinbelow relevant observations made in the case of SKF India Limited [supra], which reads as follows: 9. Section 11A puts the cases of non-levy or short levy, non-payment or short payment or erroneous refund 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (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. 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 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 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 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 provisions of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear 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 directly relatable to the value of the goods on the date of clearance, hence, enhanced duty. This enhanced duty is on the corrected value of the goods on the date of removal. When the differential duty is paid after the date of clearance, it indicates short- payment/short-levy on the date of removal, hence, interest which is for loss of revenue, becomes leviable under Section 11AB of the Act. In our view, with the entire change in the Scheme of recovery of duty under the Act, particularly after insertion of Act 14 of 2001 and Act 32 of 2003, the judgement of this Court in the case of M.R.F. Limited [supra] would not apply. That judgement was on interpretation of Section 11B of the Act, which concerns claim for refund of duty by the assessee. That judgement was in the context of the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplementary invoices is directly relatable to the value of goods on the date of clearance, interest would be chargeable accordingly. We find that issue determined by the Apex Court in two cases, referred to above, have been taken into consideration again by the Apex Court in the case of M/s. Steel Authority of India Ltd. (supra) and the question has been referred to the Larger Bench. It is admitted by the learned counsel that issue has not been answered by the Larger Bench on the reference in the case of M/s. Steel Authority of India Ltd. (supra). In view of the above, till date, the judgments of Apex Court in the cases of SKF India Ltd. and International Auto Ltd. (supra) hold field and accordingly, we are of the opinion that the order passed by the Tribunal deserves to be set aside in reference to the judgments of the Apex Court in the cases of SKF India Ltd. and International Auto Ltd. (supra) and accordingly, the appeal deserves to be allowed. Accordingly, while accepting the appeal in reference to the judgments in the cases of SKF India Ltd. and International Auto Ltd. (supra), the impugned order is set aside. The issue is ordered to be governed by the judgment in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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