TMI Blog2009 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... a, JJ. Shri Sanjeev Kaushik, Central Government Counsel, for the Appellant. [Order per: M. M. Kumar, J]. - The revenue has preferred these appeals (CEA Nos.61 62 of 2008) under Section 35(G) of the Central Excise Act, 1944 (for brevity, 'The Act'), claiming that a substantial question of law would arise from the order dated 3.10.2007 (A-4) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, 'The Tribunal'). The following substantial question of law has been claimed by the revenue: - "Whether the assessee is not liable to pay interest on the goods which although cleared in the past but had issued supplementary invoices of duty on escalation of prices?" 2. The dealer-respondent is holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be demanded under the provisions of Section 11A of the Act and the amount already paid should not be appropriated against the demand. It was further alleged that why interest be not recovered from the dealer. The dealer contested the claim made by the revenue. However, the Assistant Commissioner ordered the recovery of interest amount. The rationale for the aforesaid view is discernible from the following paras of the order dated 25-01-2005 passed by the Assistant Commissioner: - "The provisions of Section 11AB are applicable in respect of duty determined under Sub Section (2) of Section 11A of duty which has been paid under Sub-Section (2B) of Section 11A. Sub Section (2) of 11A is for determination of duty on show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation of use of his money. A person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation liability to pay interest is founded on the doctrine of compensation. I observe that in the instant case, there is no dispute that the buyer has granted price rise to the appellant after negotiations etc. with retrospective effect. The appellant paid differential duty by raising supplementary invoices at a later rate. This means that there was short payment of duty at the time of clearance of goods. It cannot be said that the appellant was not aware that price rise will be given by buyer. He may not be aware of the quantum of price rise. As the appellant was fully aware of the fact that pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on precedent is the existence of an order determining the duty under Section 11A(2) of the Act or the duty must have been paid on their own account in the manner prescribed under Section 11AB(2) of the Act. The Commissioner in his order has observed that the dealer had made himself liable to pay interest in terms of Section 11AB of the Act on differential amount of duty which has been paid later. The aforesaid approach is not correct because there is no case of any non payment, short levy or short payment as envisaged under Section 11A(1) of the Act. Section 11A(2) the Act contemplates entirely a different situation than the one in hand and therefore it has to be held that the provisions of Section 11AB(2)(b) of the Act are not attracted to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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