TMI Blog2012 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri Saurav Yadava, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : D.N. Panda, Member (J)]. Learned Counsel moving the stay application submits that there is limitation prescribed for recovery of interest relating to the years 2005-06 to 2008-09. Duty liability arose under supplementary invoices value and that was paid as per law. Interest of Rs. 9,69,860/- demanded thereon is time barred. Therefore, not only stay application may be allowed but also the appeal shall succeed. To submits so, he says that Apex Court has prescribed limitation in terms of para 13 of the judgment in the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd. reported in 2000 (118) E.L.T. 311 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstance, balance levy or non payment become realizable. Supplementary invoices give rise to duty liability followed by interest. The appellant has no dispute on duty liability. But grievance of appellant is that interest on the duty so paid is not recoverable being time barred. For recovery of interest there is no time limit prescribed by Section 11A. Apex Court in the case of C.C.E., Jaipur v. Ragbhuvar (India) Ltd., 2000 (118) E.L.T. 311 (S.C.) held that :- 13. 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 therefor. It is not for the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme and what is sought to be really and in substance done is to inform the manufacturer that the adjustment he purported to have made was with an amount not legitimately or factually earned by or due to him. For this purpose, the irregularity and impropriety committed by the manufacturer in maintaining the accounts and the error in the calculation of the credit said to have been earned by him is pointed out, and the manufacturer is only directed to reverse the credit so wrongly and undeservedly made by readjustment and if need be, to recover the amount equivalent to such credit wrongly availed of and disallowed by the proper officer. The recovery of credit availed of and utilized in utter breach of the faith and mutual trust and confidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not disputed by appellant calls for recovery of interest. The short levy itself or short payment itself stand to prove that the assessee has defaulted in making the payment. It may also to be appreciated that while prescribing recovery of interest legislature has thoughtfully not prescribed the limitation for such recovery since interest is outcome of the levy. If levy is barred by limitation interest automatically ceases to be recovered. When levy is not time barred, interest follows. Therefore, Section 11AB not being subject to sub-section (1) of Section 11A, appellant s preposition that levy of interest is time-barred is inconceivable. There is also no time limit pre- scribed either in sub-section (2) or sub-section 2B of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be able to get benefit of that decision. Learned Counsel also relied on the said decision of the Tribunal to submit that when the Division Bench had remanded the matter, a Single Bench should also pass same order otherwise that will amount to judicial indiscipline. It may be stated that learned Counsel has misconceived the contents of para 4 of the decision of the Tribunal in the case of KEC International Ltd. (supra). Tribunal has categorically stated that the point of limitation is never a pure question of law. It is always a mixed question of law and facts. But the present case demonstrated by page 28 of the appeal folder as relied by the learned Counsel, categorically demonstrates the periodicity of default that was well known ..... X X X X Extracts X X X X X X X X Extracts X X X X
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