TMI Blog2011 (8) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... duty - Accordingly appeal is dismissed. - 280 of 2009 - - - Dated:- 8-8-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri B.L. Narasimhan with Shri Shainkey Agrawal, Advocates for the appellants. Shri N. Pathak, Authorised Departmental Representative (Advocate) for the Revenue Per Shri Justice R.M.S. Khandeparkar: Heard the Advocate for the appellants and the DR for the respondent. 2. The present appeal arises from the order dated 4.11.2008 passed by the Commissioner, Bhopal. By the impugned order, the demand for Rs.14,55,132/- has been confirmed along with interest of Rs.12,79,569/- and Rs.5,74,375/-. 3. The issue relates to levy of interest under Section 11AB of the Central Excise Act, 1944 for the period from January, 2004 to March, 2006 on the differential duty paid by the appellants under supplementary invoices on account of retrospective price increase granted to the appellants subsequent to the removal of goods, and bar of limitation for recovery of such interest. 4. Undisputedly, similar issue arose in the matter of M/s M.s SKH Auto Components Ltd. vs. C.C.E., Delhi IV in Excise Appeal No.548 as well as 549 of 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration the reported decisions relied upon, the matter will have to be decided. 6. In SKF India case, the Apex Court while dealing with the issue regarding the liability to pay interest pursuant to issuance of supplementary invoices, held thus:- 7.If the object of the law is to state clearly and unambiguously the obligations of the person whom the law addresses and to spell out plainly and without any confusion the consequences of failure to discharge the obligations cast by the law then the four sections of the Act fall miles short of the desired objective. Even as originally cast the provisions were far from very happily framed and worded. Subjected to amendments from time to time those provisions have now become so complicated that in order to discern their meaning it becomes necessary to read them back and forth several times. We see no reason why the two periods for which interest is leviable may not be put together and dealt with in one consolidated provision instead of being split up in Sections 11AA and 11AB. Also, there is much scope to reorganise all the different subsections of Section 11A and to present the scheme of that section in a more coherent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the category of cases in which the non-payment or short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment of duty , under the scheme of the four Sections (11A, 11AA, 11AB 11AC) interest is leviable on delayed or deferred payment of duty for whatever reasons. 11.The payment of differential duty by the assessee at the time of issuance of supplementary invoices to the customers demanding the balance of the revised prices clearly falls under the provision of sub-section (2B) of Section 11A of the Act . 7. The Apex Court in Raghuvar (India) case had observed that any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefore. It is not for courts to import any specific period of limitation by implication, where there is really none, though courts may always hold when any such exercise of power had the effect of disturbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification in the Official Gazette from time to time. There would be discretion, if at all the same is incorporated in such notification in the gazette by which rates of interest chargeable u/s. 11AB are declared. The second aspect would be whether there is any discretion not to charge the interest u/s. 11AB at all and we are afraid, language of Section 11AB is unambiguous. The person, who is liable to pay duty short levied/short paid/non-levied/unpaid etc., is liable to pay interest at the rate as may be determined by the Central Government from time to time. This is evident from the opening part of sub-section (1) of Section 11, which runs thus : Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person, who is liable to pay duty as determined under sub-section (2) or has paid the duty under sub-section (2B) of Section 11A, shall in addition to the duty be liable to pay interest at such rate ........ The terminal part in the quotation above, which is couched with the words shall and be liable clearly indicates that there is no option. As discussed earlier, this is a civil liability of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Act No. 14/2001 with effect from 11-5-2001, which have clarified the distinction between Sections 11AB and 11AC by virtue of sub-section (2B) and Explanations below the same. Second explanation below sub-section (2B) reads thus : Explanation (2) : For the removal of doubts, it is hereby declared that the interest u/s. 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. It is evident that explanation has taken care to charge the interest on the difference amount if the amount of duty payable as ascertained by the assessee and the amount of duty payable as ascertained by the Central Excise Officer, is different. Thus, even if the assessee pays the short duty by virtue of liberty granted by sub-section (2B) of Section 11A, he is liable to pay interest, on the same even if the amount is paid, and he is liable to further interest also on the amount of short duty as ascertained by the department if that exceeds the self-assessment and to that extent. By this explanation, we are convinced that even if no notice is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in T.V.S. Whirlpool case, while dealing with the issue where a demand of interest in terms of Section 47 read with Section 61(3) of the Customs Act, 1962 was barred by limitation, held thus:- 5. This Tribunal in the context of the demands Rule 57-I of the Central Excises and Salt Act, 1944 when no period of limitation was prescribed under the said rule has held that taking into consideration the scheme of the Central Excise Law and the limitation periods prescribed for various purposes under different sections and rules reasonable period limitation would be six months or five years depending upon whether there has been any suppression of facts etc. with the fraudulent intention or not. We observe as pointed out before us that the scheme of the Central Excises and Salt Act so far as the recovery of duty etc. is concerned is similar to that under the Customs Act, 1962. Here also we observe under Section 28 of Customs Act, 1962 period of limitation prescribed for recovery of duty is six months or five years as above and also the period for claim of refund is also six months. The position being similar we hold that the same logic should apply in respect of the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Customs Act where no period of limitation has been prescribed . The said observation was made having noted that under Section 28 of the Customs Act, period of limitation prescribed for recovery of duty is six months or five years and also the period for claim of refund was six months. In that context, it was observed that where no period of limitation is specifically prescribed for any specific action under the Act, the recovery should satisfy the principle of such general provision of recovery of the duty. The Apex Court dismissed the challenge by observing that as already stated above that it is only reasonable that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon. Undoubtedly, the Apex Court has recorded the general principle of law in that regard while dismissing the appeal. It is pertinent to note that neither before the Tribunal nor before the Apex Court there was issue as to whether at all any limitation period applies to such claim or not. The decision of T.V.S. Whirlpool cannot support the contention in respect of period of limitation, that necessarily the limitation prescribed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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