Kailash Transformers Pvt Ltd vs Commissioner Of Central Excise And ...

E/1098/2011-SM, E/1099/2011-SM, E/1100/2011-SM, E/1101/2011-SM, E/1102/2011-SM

[Arising out of Order-in-Appeal No. 11-2011 dated 28/01/2011 passed by CCE(Appeals), Mangalore]

[Arising out of Order-in-Appeal No. 03-2011 dated 21/01/2011 passed by CCE(Appeals), Mangalore]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

KAILASH TRANSFORMERS PVT LTD 124 KIADB, 1ST STAGE, KAPNOOR INDUSTRIAL AREA, GULBARGA Appellant(s)

Versus

Commissioner of Central Excise and Service Tax MANGALORE NULL 7TH FLOOR...TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE, - 575003 KARNATAKA Respondent(s)

Appearance:

Shri R.G. Utagikar, Advocate For the Appellant

Shri Ajay Saxena, Commissioner(AR) For the Respondent

Date of Hearing: 09/10/2015

Date of Decision: 09/10/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 22041-22045 / 2015

Per : ARCHANA WADHWA

All the appeals are being disposed of by a common order as the issue is identical. The appellants are engaged in the manufacture of electric distribution transformers which were being cleared to their customers under sales contract. The said transformers were cleared by them on payment of duty leviable on the value entered into between the appellant and their customers and as reflected in the contract. Inasmuch as the contract had a variable clause of price, there was an enhancement of the price subsequently.

2. In view of the above enhancement, the appellant raised supplementary invoices and paid the differential duty immediately.

3. In the above scenario, the Revenue raised demands for interest from the date of effecting the initial clearance and the subsequent payment of duty. Both the authorities below confirmed the demand of interest.

4. I find that the issue is no longer res integra and stands settled by the Honble Supreme Courts decision in the case of CCE, Pune Vs. SKF India Ltd. [2009(239) ELT 385 (SC)]. It stands held that payment of differential duty by way of supplementary invoices raised on account of price revision, would call for confirmation of interest though such short payment of duty was completely unintended. Similarly in the case of CCE Vs. International Auto Ltd. [2010(250) ELT 3 (SC)], it was held that the price difference between date of removal and enhanced price at which goods were ultimately sold were not exempted from interest chargeable under Section 11AB of the Central Excise Act and such interest was payable for the loss of revenue on any count. The Larger Bench decision of the Tribunal in the case of Lucas TVS Ltd. Vs. CCE, Chennai [2009 (233) ELT 192 (Tri. LB)] is also to the same effect. As against above, learned advocate has drawn my attention to the Karnataka High Courts decision in the case of CCE, Bangalore-III Vs. Bharat Heavy Electricals Ltd. [2010(257) ELT 369 (Kar.)] laying down that in such a scenario Section 11AB for interest would not be applicable. He submits that the said decision stands confirmed by the Honble Supreme Court when the SLP file by the Commissioner was dismissed reported as 2015(318) ELT A155 (SC).

5. In his rejoinder, learned Commissioner(AR) submits that dismissal of SLP by the Supreme Court does not lay down the law as against the dismissal of the statutory appeal. Inasmuch as there are detailed and reasoned orders passed by the Honble Supreme court, the same becomes the law of the land and is required to be followed.

6. After carefully considering the submissions made by both the sides, I find that the issue is no more res integra and stands settled by the above referred decisions of the Honble Supreme Court, which are required to be followed. Accordingly I find no merits in the appeals and the same are rejected.

(Order pronounced and dictated in open court)

ARCHANA WADHWA JUDICIAL MEMBER

Raja..

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