IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CEA No. 79 of 2009 Date of Decision: October 29, 2009 Commissioner, Central Excise Commissionerate, Chandigarh …Appellant Versus M/s JCBL Limited …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Mr. Gurpreet Singh, Sr. Standing Counsel for Indirect Taxes, for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of CEA Nos. 79 and 83 of 2009, which have been filed under Section 35-G of the Central Excise Act, 1944 (for brevity, ‘the Act’) against the orders dated 26.3.2008 and 22.4.2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, ‘the Tribunal). In both the appeals a substantive question of law has been raised whether interest under Section 11AB of the Act is leviable on the difference of duty on the goods cleared by a dealer-assessee on the revised price of such goods. The Tribunal in both the cases has placed reliance on a judgment of Bombay High Court rendered in the case of Commissioner of Central Excise, Aurangabad v. M/s Rucha Engineering Pvt. Ltd., 2008 (223) E.L.T. 161 CEA No. 79 of 2009 (Bom.). In the aforesaid judgment it has been held that where differential duty was paid by the assessee on the basis of upward revision of price of goods sold earlier then it would not attract levy of interest on the differential amount of duty paid later. Despite service no one has put in appearance on behalf of the dealer-respondent(s). The view of the Bombay High Court has been overruled by Hon’ble the Supreme Court in the case of Commissioner of Central Excise, Pune v. SKF India Ltd., 2009(239) E.L.T. 385 (S.C.). The view of Hon’ble the Supreme Court is discernible from the observation made in para 14, which reads thus:- “14. We are unable to subscribe to the view taken by the High Court. It is to be noted that: the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, follows that at the time of sale the goods carried a higher value and those were cleared on short payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus it was clearly a case of short payment of duty though indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of Section 11A and attracted levy of interest under Section 11AB of the Act.” In both the appeals, the Tribunal has placed reliance on the Division Bench judgment of Bombay High Court, which stands overruled. 2 CEA No. 79 of 2009 Therefore, the answer to the aforesaid question has to be in the affirmative and differential amount of duty on the basis of upward revision of price of the goods sold earlier, would attract levy of interest under Section 11AB of the Act. The appeals are, therefore, allowed. The impugned orders dated 26.3.2008 and 22.4.2008, passed by the Tribunal as well as that of the Commissioner are set aside and the order of the Adjudicating Authority to the extent of levy of interest under Section 11AB of the Act is restored. The appeals stand disposed of in the above terms. (M.M. KUMAR) JUDGE (JASWANT SINGH) October 29, 2009 JUDGE Pkapoor 3