TMI Blog2010 (5) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... public exchequer, it would amount to unjust enrichment - duty liability arising in the course of the adjudication proceedings before the authorities and appropriate steps being taken by the authorities concerned to safeguard the revenue while allowing the assessees to take the benefit of various facilities granted under the statutory provisions - appellant has made out the case as regards the penalty amount, but no case has been made out as far as interest amount is concerned - application is partly allowed and the penalty amount is waived till the disposal of the appeal - E/2772/2009 - 452/2010-EX(PB) - Dated:- 10-5-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri A.R. Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to demand the interest and taking into consideration the facts of the case, no fault can be found with the impugned order. 4. It is undisputed fact that the appellants are engaged in manufacture of cement and clinkers classifiable under sub-heading 2502.29 and 2502.10 respectively. Clinker is consumed captively in the manufacture of cement cleared after availing exemption benefit under Notification No. 50/C.E./2003 dated 10-6-2003. The appellants did not pay any duty on the clinker so consumed captively and had contended that the exemption under Notification No. 67/95-C.E. dated 16-3-95 was available in relation to such product. 5. When the matter was being dealt with at the appellate stage before the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of payment of such duty. Obviously, Section 11AB clearly clarifies that a manufacturer has to pay the interest alongwith the duty in case there is any short levy or short payment revealed either from the order determining such liability in terms of sub-section (2) or from the amount paid in terms of sub-section (2B) of Section 11A of the said Act. It further provides that such payment shall be from the date of the month succeeding the month in which the duty ought to have been paid under the Act. 7. Sub-section (2) of Section 11A provides that the Central Excise Officer shall determine the amount of duty of excise due from the person who has made any representation pursuant to the notice received by him under sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11A. 10. Right to appeal is a statutory right and the same can be subject to various conditions and law laid down in this regard is well settled. Being so, a person aggrieved by an order of the original Authority desiring to avail the benefit of the appellate jurisdiction can avail such remedy subject to conditions imposed or attached thereto. Undoubtedly, in order to avail such benefit under the said Act, the appellant has to deposit the amount determined by the lower authority. Being so, the same being the duty payable under the statute being required to be paid and which is allowed to be deposited in terms of the statutory provision under Section 35F of the said Act, such determination of the liability would take the colour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are also of the opinion that there is no adjudication as required under sub-section (2) of Section 11A, interest and penalty cannot be levied by the Revenue invoking Section 11A and Section 11AC. ... In view of the absence of material allegations required to be made under which the show cause notice and issuance of show cause notice 4 years after the payment of duty, claim of the appellant has to be held as barred by limitation and in view of non-adjudication of the claim of the assessee under sub-section (2) of Section 1A, substantial questions are answered in favour of the assessee and against the Revenue." 12.The substantial questions of law were that : "1. Whether interest can be recovered from an assessee for the delayed pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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