TMI Blog2010 (3) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... e is fraud, collusion or any willful statement or suppression of facts. SCN silent with regard to averments as required under section 11A. revenue claim barred by limitation and in view of non-adjudication under sub-section (2) of section 11A substantial question answered in favour of assessee. - 25 of 2007 - - - Dated:- 12-3-2010 - K.L. Manjunath and H.S. Kempanna, JJ. Shri C. Shashikanta, Advocate, for the Appellant. Shri K.S. Ravishankar, for the Respondent. [Judgment per : K.L. Manjunath, J.]. - Revenue has come up in this appeal challenging the legality and correctness of the order passed by CESTAT, South Zonal Bench, Bangalore in CESTAT Final Order No. 1159/2006, dated 4-7-2006 raising the following substantial ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice on 25-4-2005 stating that the assessee has paid duty at a later date which has resulted in the assessee liable to pay interest under Section 11AB and penalty under Section 11AC of the Central Excise Act, 1944 and the assessee was called upon to show the cause within a period of 30 days from the date of receipt of notice. Assessee sent a detailed reply stating that the assessee is not liable to pay either interest or penalty since there is no willful default and that the appellant has no power to levy interest or penalty and requested the authorities to drop the proceedings. 4. Asst. Commissioner of Central Excise by his order dated 4-8-2005 rejected the contentions of the assessee and directed the assessee to pay interest and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further contends that when interest cannot be levied and when there is no adjudication under sub-section (2) of Sec. 11AB, provisions of Sec. 11AC also does not attract and lastly contends that show cause notice issued in the year 2005 was barred by limitation, as proviso to Sec. 11A cannot be exercised by the authorities, therefore he requests the court to dismiss the appeal. 7. Having heard the counsel for the parties, we are of the opinion that the facts of this case are not in dispute to the following extent : That Notification No. 2/2001 dated 27-1-2001 exemption was granted to the assessee in respect of the vehicles removed from its factory to Gujarat to provide relief to the victims of Gujarat earthquake and that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard, on such duty from the date immediately after the expiry of the said period of three months till the date of payment of such duty : Provided that where a person chargeable with duty determined under sub-section (2) of Sec. 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty. Explanation 1 : Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, the court, the date of such determination shall be the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in sub-section (2) of Section 11A, till the date of payment of such duty. (2) For the removal of doubts, it is hereby declared that the provisions of sub-section (1) shall not apply to cases where the duty became payable before the date on which the Finance (No. 2) Bill, 1996 receives the assent of the President. Explanation 1 - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the appellate tribunal or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation 2 - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest shall be payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a fraud, collusion or any willful statement or suppression of facts are involved in a case either in not paying the duty or not paying the duty in full, in such circumstances, revenue would get power to levy interest and penalty. But in the instant case, show cause notice issued is silent in regard to the averments to be made as required under Sec. 11A and we are also of the opinion that there is no adjudication as required under sub-section (2) of Sec. 11A, interest and penalty cannot be levied by the Revenue invoking Sec. 11A and Sec. 11AC. Counsel for the assessee has relied upon the judgment of the Apex Court in Kaur Singh v. Collector of Central Excise, New Delhi [1997 (94) E.L.T. 289 (S.C.)] and in the case of Pratibha Processors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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