TMI Blog2014 (10) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was applicable. The Assistant Collector of Central Excise vide order-in-original dated 24th May, 1983 [Exhibit-B to this Appeal] held that the product would fall under Tariff Item 14F and confirmed the demand of differential duty of ₹ 1,16,10,001.08. 3. The Appellant challenged the order-in-original in Writ Petition No.1460 of 1983 in this Court, challenging the classification of the product under Tariff Item No.14F and also the demand for differential duty. The Respondent was restrained by an interim order 1st July, 1983 from recovering any excise duty in excess of duty payable under Tariff Item No.68. Thereafter, show cause notices dated 2nd June, 1983, 7th June, 1985 and 17th October, 1988 came to be issued. In the show cause notice dated 17th October, 1988 it is alleged that the Appellant claimed higher abatement of excise duty and sought to recover differential duty amounting to ₹ 20,84,955.72 under proviso to section 11A(1) of the Act read with Rule 9(2) of the Rules as also penalty under section 173Q(1) of the Rules. 4. On 17th September, 2002, this Court dismissed the Writ Petition upholding the order dated 24th May, 1983 classifying the product under Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Supreme Court had rejected the Respondent's classification of the product under Tariff Item 14F and upheld the Appellant-assessee's case under Tariff Item 68. 8. Being aggrieved by the said Order-in-appeal of the Commissioner of Central Excise (Appeals), the Appellant filed appeal No.E/86555/13-MUM along with stay application No.E/STAY/94729/13- MUM before the Customs, Excise Service Tax Appellate Tribunal (CESTAT). The aforesaid stay application came up for hearing on 7th October, 2013. The Appellant was seeking stay of the interest amount and penalty inter alia contending that the duty amount has already been collected from the customers under section 11D of the Act before the introduction of section 11DD which came into force from 14th May, 2005. It is contended that in the absence of any provision, interest was not chargeable. Vide the impugned order dated 7th October, 2013, the CESTAT directed the Appellant to remit the interest liability calculated at the applicable rate for the period 14th May, 2003 to the date on which the provisions of section 11DD came came into force till the date on which the duty liability was discharged. The present appeal impugns th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to borrow money, he is required to pay interest thereon and, therefore, supported the impugned order to the effect that pre-deposit of penalty and interest was justified. 13. Section 35F of the Act provides as follows:- 35F. Deposit, pending appeal, of duty demanded or penalty levied - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. [(1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable gods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government. ] (2) Where any amount is required to be paid to the credit of the Central Government under [sub-section (1) or sub-section (1A), as the case may be,] and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duties, it is found that there has been a short-levy or non-levy of duty, the Excise Officer is empowered to take proceedings under section 11A within the period of limitation after issuing a show cause notice. In such a case, limitation period will run from the date of the final assessment.... 21. The Appellant has thus pleaded that in the instant case, the final assessment was not completed and the parties proceeded on the basis of provisional assessment pending the challenge to classification of the product under Tariff Item 14F. It is a matter of record that after this Court dismissed Writ Petition No.1460 of 1983 the Hon'ble Supreme Court reversed the said decision and upheld the Petitioners' contention that correct classification was that under Tariff Item 68 in this behalf, the assessee has proceeded on the basis that the goods were cleare on the basis of the provisional assessment. This fact is recorded in the order of this Court in the matter of very same assessee in Writ Petition No.1460 of 1983 decided on 17.9.2002 in 2003 (161) ELT 68 (Bom.) where the Court found it to be the case of unjust enrichment and directed the assessee to pay the duty collected fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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