Valuation - short payment/short levy of duty: The assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. 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 differential price signify that value, which is the function of the price, on the date of removal/clearance of the goods was not correct. That, it was understated. Therefore, the price indicated by the supplementary invoice is directly relatable to the value of the goods on the date of clearance, hence, enhanced duty. This 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 shortpayment/ short-levy on the date of removal. (para 14)
Valuation – interest: The assessee in default may make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and, in that event, such assessee in default would not be served with the Demand Notice under Section 11A(1) of the Act. However, Explanation (2) to the sub-section makes it clear that such payment would not be exempt from interest chargeable under Section 11AB of the Act. What is stated in Explanation (2) to sub-section 2(B) is reiterated in Section 11AB of the Act, which deals with interest on delayed payment of duty. From the Scheme of Section 11A(2B) and Section 11AB of the Act, it becomes clear that interest is levied for loss of revenue on any count. Appeal allowed. (para 14)
Appeals- Pre-deposit: Tribunal - The Tribunal, first and foremost, is duty bound by Article 141 of the Constitution of India to ensure that it follows binding precedent of the Supreme Court. The Tribunal as a judicial body must follow principles of consistency when it decides cases. The lack of consistency is clear on the face of record. Faced with this situation, we are of the considered view that it would be appropriate to remit the proceedings back to the Tribunal for reconsideration of the matter having regard to the observations made by this Court earlier. Judicial orders must be passed by the Tribunal with a greater degree of circumspection and application of mind. Whim and caprice are alien to the judicial process. Consistency, based on judicial precedents should be the norm. (para 9) In order to facilitate a fresh decision on remand, the impugned order of the Tribunal dated 11th September 2009 is set aside and the stay application is restored to the file of the Tribunal for a fresh decision. (para 10)
Appeal before CESTAT:Pre-deposit - From the perusal of the observations made by Adjudicating Authority in para- 6 of the order, it appears that the entire amount has been deposited, though, it is true that there is contravention of the provisions of Rule 8(3-A) of the Central Excise Rules. However, prima-facie, it appears that for the period in dispute, entire amount of duty stand deposited and Tribunal in the case of appellant itself in appeal Nos. 168-169/ 2008-SM has waived the requirement of pre-deposit. The order of the Tribunal dated 28.8.2009 requires modification. Accordingly, we reduce the amount to be deposited from Rs.25 Lacs to 5 Lac which the appellant will deposit within 30 days. (para 7) The Tribunal is directed to decide the appeal no.1728 of 2009 expeditiously and preferably within a period of two months from the date of presentation of the certified copy of this order which the appellant undertakes to file within two weeks. (para 8)
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