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2014 (10) TMI 447 - HC - Central ExciseWaiver of pre deposit - Interest under section 11AB - Penalty under Rule 173Q(1) - Whether, under the facts and circumstances of the case, the CESTAT was justified in directing to deposit interest liability for the period 14-5-2003 (when Section 11DD came into force) till the day demand of differential amount was paid - Held that:- provisional assessment was made on account of the disputed classification of the product. The relevant date in cases where duty of excise is provisionally assessed is the date of adjustment of duty after the final assessment. As a result Section 11A comes into reckoning only after the final assessment has taken place. If the Central Excise Officer concludes that duty has been short levied, the officer is empowered to take proceedings under section 11A within limitation after issuing show cause notice. Final assessment is a condition precedent for invocation of section 11A. Clearance was made on the basis of provisional assessment. This being undisputed position, there is no justification in directing pre-deposit of the interest amount from the day Section 11DD came into effect till payment of differential duty especially in view of the fact that section 35-F of the Central Excise Act does not provide for pre-deposit of the interest demand prior to 11th May, 2007. The impugned order dated 7th October, 2013 is, therefore, uncalled for. Perusal of the impugned order reveals that the tribunal has proceeded on the basis that the order in original relates to assessment during the relevant period. proceeds to record that the appellant did collect duty liability at enhanced rate applicable to tariff item 14F even though they were discharging the duty liability only at the lower rate applicable to Tariff Item 68. That the appellant wanted to enjoy the benefit of duty collected at the higher rate from the customers without remitting the same to the exchequer and therefore the Appellant was liable to discharge interest liability on the duty amount, the tribunal therefore arrived at the prima facie conclusion that the Appellant has not made out a case for the complete waiver of dues adjudged against them and directed the Appellant to remit the interest liability from 14th May, 2003 till the date of which duty liability was discharged. - Partial stay grated.
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