Commissioner of Central Excise Commissionerate vs D.C.M. Engineering Products

M.M. Kumar, J.—This order shall dispose of C.E.A. Nos. 129 and 141 of 2008 as common question of law and facts are involved. However, facts are referred from C.E.A. No. 129 of 2008. This appeal filed u/s 35-G of the Central Excise Act, 1944 (for brevity, ''the Act'') challenges order dated 15.1.2008 (P-5), passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, ''the Tribunal'').

In April 2004, the respondent-assessee supplied manufactured articles which include accessories of motor vehicles. Subsequently in July 2004 to March 2005 it had raised supplementary invoices to their customers on the basis of upward revision of the prices of their products which were cleared earlier. As a result of upward rise of the prices with retrospective effect, the respondentassessee paid difference of Excise duty amounting to Rs. 31,12,007/-. The revenue has claimed that it is entitled to charge interest on the additional amount received by the respondent-assessee after the goods stood cleared from the factory gate on account of price escalation by the respondent-assessee. The purchase order, which is a material document (Mark ''A''), has been referred by the Adjudicating Authority under the heading ''Reply of the Noticee'', yet under the discussion and findings no cognizance of the purchase order has been taken despite the fact that Section 11AB of the Act provide for charging of interest on the additional duty paid. A similar mistake has been committed by the Commissioner (Appeals) as well as the Tribunal.

In somewhat similar circumstances, Hon''ble the Supreme Court in the case of Commissioner of Central Excise, Aurangabad v. Rucha Engineering Pvt. Ltd. Civil Appeal No. 910 of 2008, decided on 1.2.2008, has ordered fresh consideration by the Tribunal by keeping in view the aforesaid facts as to whether the appellant-revenue is entitled to payment of interest from the date of issuance of original invoice. Hon''ble the Supreme Court has passed the order of remand after briefly discussing the aforesaid question in its order dated 1.2.2008 (supra). Accordingly, the order passed by the Tribunal is set aside and the matter is remanded back to the Tribunal to consider the aforesaid question afresh and decide the same in accordance with law. A copy of the order of Hon''ble the Supreme Court in the case of M/s Rucha Engineering Pvt. Ltd. (supra) may also be sent to the Tribunal for facility of reference. However, it is made clear that the parties would be at liberty to raise all the issues and this order shall not be considered as an expression of opinion on the merits of the case.

The appeals stand disposed of in the above terms.