M/S. Unique Structures & Towers Ltd vs Cce, Raipur

CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI

Date of Hearing/Decision: 5.5.2015

E/Stay/55523 & 55524/2014 along with

Appeals Nos.54844 and 54845/2014

[Arising out of Order-in-Appeal No.114(CE)RPR-I/2014 dated 20.05.2014 and Order-in-Appeal No.115/RPR-I/2014 dated 20.05.2014 passed by the Commissioner of Central Excise (Appeals), Raipur]

M/s. Unique Structures & Towers Ltd. Appellants

Vs.

CCE, Raipur Respondent

For approval and signature:

Honble Shri Rakesh Kumar, Member (Technical)

Honble Shri S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

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?

4 Whether Order is to be circulated to the Departmental authorities?

Appearance: Rep.by Shri Manish Saharan, Advocate for the appellant.

Rep. by Shri M.S. Negi, DR for the respondent.

Coram: Honble Shri Rakesh Kumar, Member (Technical)

Honble Shri S.K. Mohanty, Member (Judicial).

Final Orders Nos.51694-95/2015 dated: 5.5.2015

Per Rakesh Kumar:

The appellants are manufacturers of Galvanized Tower parts which had been supplied against contracts with price variation clause. The period of dispute in Appeal No.E/54844/2014 is from 1.4.2011 to 31.08.2012 and the period of dispute in Appeal No.54845/2014 is from 1.9.2012 to 31.12.2012. In both these cases, there was upward revision of the price subsequent to the clearance of the goods and the appellant had paid the differential duty under supplementary invoices. The only dispute in both the cases is as to whether the appellant would be liable to pay interest under Section 11 AB of the Central Excise Act, 1944 on the differential duty paid under supplementary invoices. The interest demand for the period from 1.4.2011 to 31.08.2012 is Rs.1,03,909/- for which the show cause notice had been issued on 14.12.2012 and the interest demand for the period from 1.9.2012 to 31.12.203 is Rs.19,383/- for which the show cause notice had been issued on 15.03.2013. In both the cases, the Asstt. Commissioner by two separate orders confirmed the above mentioned interest demands and also imposed penalty of Rs.5,000/- each. On appeal being filed to the Commissioner (Appeals), the orders passed by the Asstt. Commissioner were upheld against the order of the Commissioner (Appeals). These appeals have been filed along with stay application.

2. Though the matters are today listed for hearing of the stay applications only, on going through the matter, we are of the view that since the issue involved in these cases is a very short issue and stands decided by the Apex Court judgement in the case of CCE, Pune Vs. SKF India Ltd. reported in 2009 (239) ELT 385 (SC) and Commissioner of Central Excise Vs. International Auto Ltd. reported in 2010 (250) ELT 3 (SC), the matters can be taken up for final disposal. Accordingly, the requirement of pre-deposit is waived and with consent of both the sides, the appeals were heard for final disposal.

3. Shri Manish Saharan, Advocate, ld. Counsel for the appellant while conceding that the issue involved in this case stands decided against the appellant by the Apex Courts judgment in the case of SKF India Ltd. (supra) and International Auto Ltd. (supra) cited the judgement of the Honble Karnataka High Court in the case of CCE, Bangalore-III Vs. Bharat Heavy Electricals Ltd.  2010 (257) ELT 369 (Karnataka).

4. Shri M.S. Negi, ld. Departmental Representative defended the impugned order by relying upon the Apex Courts judgments in the cases of International Auto Ltd. (supra)and SKF India Ltd. (supra) and of the Bombay High Court judgement in the case of Gammon India Ltd. reported in 2013 (298) ELT 171 (Bombay) wherein reliance has been placed on the Apex Court judgement in the case of International Auto Ltd. (supra) and SKF India Ltd. (supra) and the judgement of the Honble Karnataka High Court in the case of BHEL (supra) has been distinguished.

5. We have considered the submissions from both the sides and perused the records.

6. The issue involved in this case stands decided in favour of the Department by the Apex Courts judgement in the case of SKF India Ltd. (supra) and International Auto Ltd. (supra) and also by the judgement of Bombay High Court in the case of Gammon India Ltd. (supra)

7. In view of this, the impugned order of the Commissioner (Appeals) is upheld on merits. However, we find that in respect of Appeal No.E/54844/2014, the show cause notice for demand of interest for the period from 1.4.2011 to 31.08.2012 had been issued on 14.12.2012 and there would be question as to whether part of the interest amount, demand would be hit by limitation period prescribed under Section 11 A. In this regard, we find that Honble Punjab & Haryana HighCourt in the case of Neel Metal Products Ltd. Vs. CCE, Delhi-III reported in 2014 (306) ELT 367 (P&H) has held that in such cases only normal limitation period prescribed under Section 11 A would be applicable for demand of interest. Accordingly, in Appeal No.E/54844/2014, the interest demand would be confined only to normal limitation period. In the second appeal No.E/54845/2014 the interest demand for the period from 1.9.2012 to 31.12.2012 raised by the show cause notice dated 15.03.2013 is within time and hence, the same is upheld.

8. As regards the penalty on the appellant, since the dispute in this case is regarding interpretation of the statutory provisions imposition of penalty under Rule 27 was not called for. The penalty is, therefore, set aside. Both the appeals stands disposed of as above. The stay applications also stand disposed of.

(Rakesh Kumar)

Member (Technical)

( S.K. Mohanty )

Member (Judicial)

Ckp.

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