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TMI Blog2020 (10) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Central Excise and Service Tax Department and Mr. Ankur Sinha, A.C to G.A. V for the State. 2. Petitioner approached this Court for quashing of the notice dated 6/8.10.2016 issued under Section 87 of the Finance Act by the Assistant Commissioner of Central Excise and Service Tax Division no.2, Bokaro whereby and where under it was directed to comply with the provisions of Section 87 of the Finance Act, failing which it was to be treated as defaulter and face legal consequences and recovery. Petitioner also prayed for quashing of notice dated 10.08.2016 issued under Section 87 of the Finance Act, 1994, where again he was asked to take steps in terms thereof, otherwise it would be declared defaulter and face all legal consequences. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 2011 and Rs. 8,273/- per ton for the period from October, 2011 to December, 2011 with retrospective effect. In this regard the Deputy Commissioner (Audit), Central Excise ( Headquarters), Ranchi raised an objection vide its report dated 26.07.2012 for short payment of service tax under Works Contract ( Reserve Charge Mechanism) during the period July 2012 to March 2013. On such objection, BCCL deposited an amount of Rs. 10,03,913/- and Rs. 1,41,974/- towards service tax in August, 2013 and March , 2013. Notice under Section 87 of the Finance Act, 1994 was issued on 10.08.2016 wherein petitioner was directed to take steps otherwise he would be declared defaulter and face consequences. The Superintendent of Central Excise, Range No. 5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. Respondent took a plea that payment of the differential duty and / or the unpaid service tax (after being detected by the Revenue- Audit) is an admission under law by the assesse and consequentially the liability to pay interest becomes incumbent upon the assesse within the meaning of sub-clause (1) to Section 11 AA of the Central Excise Act, 1944; incorporated by the Finance Act, 2011 w.e.f 08.04.2011 by merging Sections 11 AA and 11 AB providing for interest from the date on which duty becomes due till the date of payment. This is the sheet anchor of the reply of respondent Central Exercise and Service Tax Department. 6. Learned counsel for the respondent Mr. Ratnesh Kumar has placed on record the decision rendered by the larger B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessee arriving at an amount which would not be the correct amount. He pays this incorrectly assessed amount. Would it be a case of short-levy or short-payment? If short-levy is to be understood as confined to cases where the assessment is not the full assessment, taking into account the parameters involved correctly, namely, rate of duty, valuation and quantity it could be classified as a case of short-levy as one of the components of proper assessment, namely, valuation has been incorrectly arrived at. The payment in such a case is made in terms of the incorrectly assessed figure. The payment matches the assessment. In fact, it is worthwhile to recall that under Rule 10 of the 1944 Rules which we have adverted to, the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the differential duty and we notice that absence of dispute is a fair acknowledgement of the fact that the facts of the present cases are unlike the situation in MRF decision where the price was fixed at the time of removal, interest is payable as provided in Section 11-AB and from the point of time indicated therein. But in these cases, the price was variable under the escalation clause which was very much within the knowledge of the assessee and the demand for interest is sustainable. 71. We are of the view that the reasoning of this Court in the order referring the cases to us (to this Bench) that for the purpose of Section 11-AB, the expression "ought to have been paid" would mean the time when the price was agreed upon by the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal. The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, Section 11-A and Section 11-AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. We would concur with the views expressed in SKF case and International Auto. We find no merit in the appeals. The appeals will stand dismissed." 9. In view of the foresaid legal position, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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