TMI Blog2020 (10) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... TD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2019 (5) TMI 657 - SUPREME COURT] the issue now stands settled that the assessee is liable to pay interest upon the differential duty and / or the unpaid service tax detected by the Revenue. Petition dismissed. - W. P. (T) No. 7273 of 2016 - - - Dated:- 14-10-2020 - HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : M/s Indrajit Sinha, Kumar Vaibhav, Advocates For the Respondent : Mr. Ratnesh Kumar, Advocate : Mr. Ankur Sinha, A.C to Mr. Kaushik Sarkhel, G.A.V ORDER Heard learned counsel for the petitioner Mr. Indrajit Sinha; learned counsel Mr. Ratnesh Kumar for the Central Excise and Service Tax De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms agreement were to be signed every year in line with the terms agreed therein. Petitioner started supplying washed coking coal to the SAIL as per the schedule. Central Excise tax was levied on coal for the first time w.e.f. March, 2011. As per the petitioner, since the MOU for the financial year 2011-12 was not finalized till the beginning of the financial year 2011-12, billing of washed coking coal was done @ ₹ 7500/- per ton i.e. as per available rate for the financial year 2010- 2011. The rate for the financial year 2011-12 got finalized at much later date when it was increased to ₹ 10,303/- per ton for the period April 2011 to June 2011 ; ₹ 9678/- per ton for the period from July, 2011 to September 2011 and ₹ 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of interest on the enhanced rate of washed coking coal dispatched to the SAIL in terms of the long term agreement for the period from April 2011 to March 2012 with retrospective effect. Petitioner contended that no notice of demand for payment of duty was raised earlier without which notice of payment of interest over late payment of duty was without jurisdiction. Petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of SAIL Vrs. CCE reported in 2015 (326) ELT 450 (SC) on the point, which has been referred to the larger Bench. 5. Learned counsel for the respondent Central Excise and Service Tax Department had filed counter affidavit earlier on 30.10.2018 and contested the plea raised by the petitioner. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and the legal issues relating to interest over differential duty or unpaid service tax in terms of Section 11AA of the Act of 1944 having been settled, the challenge to the impugned notices has to fail. The opinion of the Apex Court as contained in para no. 67,69 and 71 are quoted herein below for better appreciation in the factual canvass of the present case: 67. We are here concerned in these cases with one of the ingredients of assessment, namely, valuation. There is no dispute regarding the quantity removed. There is no issue relating to rate of duty. The dispute is relating to the correct value. To appreciate it better, let us take an example of an assessee who deliberately undervalues the goods which he removed. This results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval in view of the retrospective operation. Admittedly the liability for payment of differential duty has arisen. Upon the true value, in a case of retrospective escalation of price though later agreed being received and consequential differential duty being admittedly payable, it would result in Section 11-A read with Section 11-AB applying. 69. While it may be true that interest cannot be demanded by way of damages or compensation and it is also further true that unless there is a substantive provision providing for payment of interest in a fiscal statute, interest cannot be demanded, we would think in the context of the Act and the Rules in question, under Section 11-AB, particularly, when there is no dispute relating to liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch final assessment is made. In fact, any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions. It may be true that the differential duty becomes crystallised only after the escalation is finalised under the escalation clause but it is not a case where escalation is to have only prospective operation. It is to have retrospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid. We would think that while the principle that the value of the goods at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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