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TMI Blog2012 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, 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.). So also he relies on the decision of Tribunal in KEC International Ltd. v. C.C.E., Jaipur reported in 2010 (262) E.L.T. 588 (Tri.-Del.). According to him when the show cause notice was issued on 7-1-2010 for the years 2005-06, 2006-07, 2007-08 and 2008-09, there shall be no recovery of interest on the supplementary invoices. 2. On the other hand ld. DR relies on the decision of the Apex Court in the case of C.C.E., Pune v. SKF India Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18) 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 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 disturbing rights of a citizen that it should be exercised within a reasonable period. Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 which is the raison d'etre for the proper and successful working of the Modvat scheme and that too in gross violation of the mandatory requirements necessarily to be fulfilled before ever claiming or availing of such benefits cannot be said to be the same as the demand for payment to be made under Section 11A of the Act of any excise duty not levied or paid or has been short-levied or short-paid. They fall into two distinct an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 Section 11A of the Act. Once there is duty paid on supplementary invoices, the appellant is legally bound for interest which is an automatic consequence. Limitation is not prescribed under sub-section (1) of Section 11A of Central Excise Act, 1944 in respect of levy of interest while that section has its own independent existence for realization of duty. Interest is a consequence of section 11A or 11AB of the Act as the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to appellant and the appellant willfully defaulted to make payment of interest. Show cause notice issued on 30-12-2009 was to recover the same. Once the reliance is placed on the document for defence that can be used by revenue to protect its interest. Learned Adjudicating Authority having noted that demand of duty being paid for the default period, interest became payable for no time bar proceeding. There was noth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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