Commissioner of Central Excise. , Bangalore-III v. Kenna Metal Widia [India] Ltd.
2011-07-21
N.KUMAR, RAVI MALIMATH
body2011
DigiLaw.ai
JUDGMENT N. Kumar , J.—The Revenue has preferred this appeal challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter called 'Tribunal' for short) holding that when excise duty has been paid before issue of show cause notice, the assessee is not liable to pay interest on delayed payment of excise duty following the judgment of this Court in Sri Krishna Pipe Industries case. Against the said order, when appeal was preferred before this Court which was dismissed at the stage of admission, that order was challenged by the Revenue before the Apex Court. The Apex Court in the case of Commissioner of Customs and Central Excise Vs. Lanco Industries Ltd., JT (2009) 7 SC 314 at para 15 held as under: 15. Sub-section 2B of Section 11A provides that in case the person in default makes payment of the escaped amount of duty before the service of notice then the Revenue will not give him the notice under sub-section 1. This, perhaps, is the basis of the common though erroneous view that no penalty would be leviable if the escaped amount of duty is paid before the service of notice. It, however, overlooks the two explanations qualifying the main provision. Explanation 1 makes it clear that the payment would, nevertheless, be subject to imposition of interest under Section 11AB. Explanation 2 makes it further clear that in case the escape of duty is intentional and by reason of deception the main provision of sub-section 2B will have no application. Following the judgment laid down in the aforesaid case, judgment in this case was set aside and the matter was remanded back to the Tribunal for fresh consideration. 2. We have heard the learned counsel for the parties. In view of the law laid down by the Apex Court as aforestated which is also followed by this Court in the case of Commissioner of Central Excise Vs. Presscom Products, (2011) 185 ECR 458 (Karnataka) held as under: 14. The aforesaid statutory provisions and the law declared by the Apex Court in the aforesaid two judgments make it clear that, interest is leviable on delayed or deferred payment of duty for whatever reasons.
Presscom Products, (2011) 185 ECR 458 (Karnataka) held as under: 14. The aforesaid statutory provisions and the law declared by the Apex Court in the aforesaid two judgments make it clear that, interest is leviable on delayed or deferred payment of duty for whatever reasons. Subsection (2B) of Section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). Non-issue of a demand notice under sub-section (1) is nothing to do with leviability of interest for delayed payment. Explanation 2 to the sub-section (2B) makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11AB. What is stated in Explanation 2 to sub-section (2B) is reiterated in Section 11AB which states where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person who has paid the duty under sub-section (2B) of Section 11A, in addition to the duty, be liable to pay interest. Interest is levied for loss of revenue on any count. The 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. The said non-payment or short payment of duty may be not intentional. Whatever may be the reason even if the assessee is not at fault on any count, as the duty payable in law is not paid on the value of the goods on the date of removal, the payment of interest is attracted to bridge the loss of revenue. When the Legislature consciously inserted these provisions in Section 11AB, the legal effect flowing from such provisions is to be given effect to.
When the Legislature consciously inserted these provisions in Section 11AB, the legal effect flowing from such provisions is to be given effect to. Therefore, a harmonious reading of the aforesaid provision makes it clear that interest is leviable on the differential duty paid in pursuance of a subsequent invoice as the proper duty payable under the law had not been paid on the date of clearance. The order passed by the Tribunal insofar as grant of benefit regarding payment of interest, is set aside. In view of the aforesaid law, it is clear that the assessee is liable to pay interest as demanded by the Revenue. Insofar as penalty is concerned, the Tribunal has not gone into the question, whether imposition of penalty is justified or not in the facts of this case. Therefore, to that extent, the order is required to be reconsidered by the Tribunal. Accordingly, we pass the following: ORDER Appeal is partly allowed. The finding recorded by the Tribunal that no interest is payable is reversed holding that interest is payable. Further, insofar as the finding regarding penalty is concerned, is set aside and the matter is remained back to the Tribunal for fresh consideration.