TMI Blog2009 (7) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... te of month succeeding the month in which duty ought to have been paid, till date of its payment - Therefore, held that the demand of interest on duty under Section 11AB of the Central Excise Act is liable to be honoured by the appellant. – Since adjudicating authority was accepted by the assessee, that order having become final and binding on the assessee, it is not open to them to say that they were not liable to pay duty on the goods by virtue of any exemption notification. - The show-cause notice in question alleged that the appellant was liable to pay penalty under Section 11AC of the Act for wilful contravention of Rule 7 of the Central Excise Rules, 2002. – Adjudication order, while upholding it, finding additional ground for penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken in appeal to this Tribunal and the Tribunal set aside the Commissioner's order. The appeal subsequently filed by the department against the Tribunal's decision was dismissed by the Hon'ble High Court as per judgment dated 30-8-2007 in Central Excise Appeal No. 249 of 2006. Meanwhile, in respect of the goods cleared by plant II to plant I for captive consumption during the period of dispute, the department had issued a show-cause notice for recovery of differential duty on the basis of CAS-4 method of valuation laid down by CBEC Circular No. 692/8/2003-CX., dated 13-2-2003. Pending adjudication of this demand notice, the appellant paid the duty on 6-11-2004, which was subsequently appropriated by the jurisdictional Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext, the counsel refers to miscellaneous application No. E/1532/09 wherein the appellant prays for incorporating additional grounds in the memo of appeal. It is submitted that such additional grounds have to be raised in the present appeal with reference to Notification 67/95-C.E., The learned SDR has opposed this application by submitting that the above plea was never raised by the appellant at any stage before. After considering the submissions, on the facts and circumstances of this case, I should reject the above application for a few reasons. Firstly, the demand of duty raised in the show-cause notice was voluntarily honoured by the assessee by making payment even before an order of adjudication was passed, and the order-in-original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside on the ground of revenue-neutrality. On the other hand, learned SDR has claimed support from the Supreme Court's judgments in Punjab Tractors Ltd. v. CCE, Chandigarh, 2005 (181) E.L.T. 380 (S.C.) and The Chairman, SEBI v. Shriram Mutual Fund Another, 2006-(5)-SCC-361, in support of his submission that any breach of civil obligation attracts penalty and the circumstances of the present case would not detract from this legal position. As regards interest on duty under Section 11AB, the learned SDR has relied on the Apex Court's judgment in CCE, Pune v. SKF India Ltd., 2009 (239) E.L.T. 385 (S.C.) = 2009-TIOL-82-S.C.-CX, wherein it was held that an assessee who paid differential duty on supplementary invoices under sub-section (2B) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the show-cause notice. In this scenario, I am of the considered view that the penalty-related issue should be remanded to the lower appellate authority. 6. As regards interest on duty under Section 11AB of the Act, I have found a valid point in the reliance placed by the learned SDR on para 10 of the apex court's judgment in SKF India Ltd. case (supra). Para 10 of the judgment reads as follows:- "10. Sub-section (2B) of section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the ruling of the Hon'ble Supreme Court as contained in Para 10 of its judgment in SKF India Ltd. case is squarely applicable to the present case and accordingly, I hold that the demand of interest on duty under Section 11AB of the Central Excise Act is liable to be honoured by the appellant. 7. In view of the above, it is not necessary to consider the other decisions cited by the counsel and the SDR. 8. In the result, I allow this appeal partly by setting aside the penalty and remanding the penalty-related issue to the lower appellate authority for fresh decision on merits. The lower appellate authority shall give the appellant a reasonable opportunity of being heard on the said issue. It is at liberty to consider the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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