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2019 (2) TMI 563 - AT - Central ExciseDemand of interest u/s 11AB of CEA and penalty u/r 25 of the Central Excise Rules, 2002 - delayed payment of duty - the duty was not payable at all - Held that:- The duty so paid by the appellant was not lawfully payable on the ground that the appellant had admittedly cleared un-branded Petrol and Diesel which attracts lower rate of duty in terms of Notification No. 4/06-CE. On this issue, the department has also not raised any SCN, therefore, the department itself has admitted that the appellant was eligible for lower rate of duty in terms of aforesaid Notification. Therefore, differential duty was not payable at all by the appellant. In this case, the duty which was paid by the appellant for which they were not liable to pay, the duty was paid voluntarily by the appellant. Therefore, the duty which was not lawfully required to be paid even though the appellant pay on their own, the department has no authority to recover interest or impose penalty with respect to such payment of duty even though belatedly - the provision of Section 11AB of Central Excise Act shall be applicable only in case where the duty which is lawfully required to be paid by an assessee and the same is not paid. Section 11A (2B) of CEA - Held that:- The sub section (2B) is also applicable only in case where duty is payable with authority of law. Moreover, the appellant have not opted for sub section (2B) explicitly for the reason that, firstly, they have only paid the duty but did not pay the interest. Secondly, after payment of duty and interest, the appellant has to opt this provision in written by informing to the department which is not the case here, therefore, sub section (2B) is also not applicable. The duty which was not admittedly payable but paid by the appellant voluntarily, no interest or penalty can be demanded from the appellant - appeal allowed - decided in favor of appellant.
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