The main legal point established in the judgment is that interest on delayed payment of duty arises only when duty has not been levied or paid or has been short levied or short paid or erroneously refunded, as per the provisions of Section 11AB of the Central Excise Act, 1944.

1. The revenue has preferred this appeal by challenging the order dated 9.10.2006 passed in Final Order No. 1723/2006 by CESTAT at Bangalore, by raising the following substantial questions of law:

i) Whether the provisions for interest on delayed payment contained in Section 11AB are applicable only for duty determined under Sub-section (2) of Section 11A or also for duty which has been paid under Section 11A of the Central Excise Act, 1944?

ii) Whether an assessee is liable to pay interest when he pays the duty because of subsequent refixation of prices through supplementary invoices, from the date of clearance of the goods?

iii) Whether the Hon'ble CESTAT Bangalore has right in law, granting immunity from penalty to the respondent?

2. The facts leading to the filing of this appeal are that, the respondent-assessee which is a manufacturer of heavy electrical goods had cleared the goods on payment of duty at 16 % as prescribed while discharging the duty liability. The respondent had been paying the duty in terms of the value arrived at on the date of payment of duty. However, the appellant, by contending that there was a delay in payment of duty on account of variation in price, issued a show cause notice dated 19.10.2004 by demanding interest and penalty on the delayed payment of duty for the period from 1.4.2003 to 31.3.2004. The respondent had replied to the said show cause notice on 8.11.2004 and the said matter was adjudicated and an order in original was passed on 27.12.2004 by confirming the demand made in the show cause notice. Being aggrieved by the said order, the respondent had preferred an appeal before the Commissioner of Central Excise (Appeals II) which authority also confirmed the order in original by his order dated 29.3.2005. The respondents thereafter preferred an appeal before the tribunal which was allowed on 9.10.2006. It is against the said order the revenue has preferred this appeal.

3. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent-assessee.

4. The main contention of the appellant is that when there was a variation in the price, duty had to be paid on the price variation (escalation) and the same had not been done, when the actual duty was paid and on account of the delayed payment, the Department was justified in issuing the show cause and also demanding interest and penalty for the said delayed payment of differential duty for the period from 1.4.2003 to 31.3.2004. He, therefore, submits that in terms of Section 11AB of the Central Excise Act, 1944, the demand made was justified and that the tribunal was not correct in setting aside the orders passed by the lower authorities. He, therefore, submits that the order passed by the tribunal be set aside and the demand made in terms of the show cause notice be upheld.

5. Per contra, learned Counsel for the respondent brought to our notice the copy of the show cause notice as well as the reply issued to the same and has contended that Section 11AB of the said Act is not applicable to the facts of the present case considering the fact that as on the date the duty was paid there was no price variation and therefore, the duty paid was in terms of the value of the said goods and subsequently, when there was a variation in price (escalation), the duty has also been paid on the differential price and hence, when there was no situation as envisaged under Section 11AB of the Act. The show cause notice issued was not in accordance with the said section and hence, the tribunal was justified in setting aside the order of the authorities and which order does not call for any interference-in this appeal.

6. Having heard the Counsel on both sides and on perusal of the material on record, we find that the show cause notice issued on 19.10.2004 was not in respect of any demand made regarding non-payment of duty on account of there being a price variation, but the demand made was only with regard to delayed payment of duty and