Supreme Court: Deciding the question whether interest is payable on the differential excise duty with retrospective effect that become payable on the basis of escalation clause under Section 11AB of the Central Excise Act, 1944, the 3-judge bench of Ranjan Gogoi, CJ and UU Lalit and KM Joseph, JJ held,

“It may be true that the differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only prospective operation. It is to have retrospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid.”

The bench was called upon to decide the correctness of 2-judge bench decisions in CCE v. SKF India Ltd. 2009 (13) SCC 461 and CCE v. International Auto Ltd. 2010 (2) SCC 672. Concurring with the aforementioned decisions, the bench said,

“the reasoning of this Court in the order referring the cases to us (to this Bench) that for the purpose of Section 11AB, the expression “ought to have been paid” would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month.”

The Court explained that when an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value consequently, the duty and interest dates back to the month “for which” the duty is determined. Duty and interest is not paid with reference to the month in which final assessment is made. It said,

“any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions.”

It was further explained that upon the true value, in a case of retrospective escalation of price though later agreed being received and consequential differential duty being admittedly payable, it would result in Section 11A read with Section 11AB applying.

[Steel Authority of India v. Commissioner of Central Excise, 2019 SCC OnLine SC 674, decided on 08.05.2019]

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