TMI Blog2009 (12) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show-cause notice – Held that: - authority impose a penalty on the assessee under the above provisions of law. This is the legal position clearly emerging from the Hon’ble Supreme Court’s judgment in Dharamendra Textile Processors (supra) and has been clarified in Rajasthan Spinning & Weaving Mills (supra). In the present case, as already noted, there is no allegation in the show cause notice for a penalty under Section 11AC and, therefore, the appellant has not made out a case for such a penalty on the respondent. - E/435/2007 - A/9/2010-WZB/C-IV/SMB - Dated:- 23-12-2009 - Shri P.G. Chacko, Member (J) REPRESENTED BY: Shri P.K. Agarwal, SDR, for the Appellant. Shri Bharat Raichandani, Advocate, for the Respondent. [Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed the department's appeal on merits. It took the view that, where the amount of duty was paid before the issue of show-cause notice, Sections 11AB and 11AC were not invokable. The present appeal of the Revenue is against this decision of the Commissioner (Appeals). 3. The-learned D.R. has reiterated the grounds of this appeal and has relied on Bisleri International v. Commissioner - 2009 (241) E.L.T. 556 (Tri-Chennai) and Commissioner v. SKF India Ltd - 2009 (239) E.L.T. 385 (S.C.), in support of his plea for levy of interest on duty from the respondent under Section 11AB of the Act. In respect of penalty under Section 11AC of the Act, he has argued that the respondent cannot resist such penalty inasmuch as they conceded their duty l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. It appears from the records that the assessee also has assumed that the payment of duty in June 2001 was in terms of this provision of law. In this scenario, I have to look at sub-section (2B) of Section 11A of the Act. Explanation 2 to sub-section (2B) reads thus: "For removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub section and also on the amount of short payment of duty, if any, as may be determined by the Central Excise Officer but for this sub-section." Now the question arises as to whether this is a fit case to which Section I1AB could be applied. Sub-section (1) of Section 11 B made it obligatory for a defaulter of duty of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be automatically applicable. The rule-makers decided not to apply the provisions of sub-section (1) of Section 11AB to cases in which duty ought to have been paid prior to 11-5-2001. This injunction laid down by the Parliament has overriding effect. In the present case, even if it be assumed that the differential duty was paid by the respondent in terms of sub-section (2B) of Section 11A of the Act, the penal provisions of Section 11AB(1) would have no application inasmuch as the above payment of differential duty was for a period which, barring a few days, was pre-11-5-2001. Where the Parliament prohibited the application of penal provision for a specific period that will have overriding effect over considerations like type of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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