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2013 (11) TMI 1023 - AT - Central ExciseDetermination of duty u/s 11A (2) before demanding interest – assessee contended that what is being demanded is CENVAT credit and the same has been treated as duty, since Section 11A has been mentioned in Rule 14 and therefore there should have been determination of duty in this case. - Held that:- Section 11A (2B) is an exception to the procedure prescribed in Section 11A - It caters to a situation where an assessee makes a voluntary payment and there is no suppression or fraud or mis-declaration or collusion, etc. The Section itself provides for recovery of the entire amount and it also provides that subsection 2B would not apply where there is fraud, suppression, mis-declaration, etc. when Section 11A has been made applicable for recovery/payment of credit wrongly taken or utilized, it would be unfair to an assessee to make a claim that when the credit is treated as duty, determination under section 11A (2) is a must - short payment would include nonpayment or short payment of interest also - the procedure adopted by the Revenue to demand only interest cannot be found fault with - Once section 11A (2B) provisions are applicable to a particular situation, the provisions of Sections 11A (1A), (2) and (2A) would not apply. The circumstances covered in Section 11A (2B) refers to duty of excise not being levied or short-paid on the final products is really surprising - Rule 14 clearly provides that for the purpose of recovery of wrongly utilized credit or wrongly taken credit, provisions of Section 11A and 11AB would apply mutatis mutandis - This does not mean that when Section 11A (2B) is invoked, it becomes duty and not the wrongly utilized CENVAT credit - the appellant has failed to make out any case whatsoever for setting aside the order demanding interest from the - Decided against Assessee.
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