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TMI Blog2012 (10) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal"] in Appeal Nos. E/932/04 and E/CO/437/04, thereby partly allowing the Appeal preferred by the Revenue. 2. Being dissatisfied with the other part of the judgment of the Tribunal below, by which it refused to pass any order of payment of interest or penalty upon the assessee, the Revenue has come up before us. 3. The facts leading to filing of this Appeal may be summed up thus : 3.1 The initial question out of which the present Appeal arises was whether the respondent's product i.e. "Ala Fabric Bleach" should be classified under the Heading 2828.90 as contended by the assessee, or under the Heading 3402.90 as claimed by the Revenue. 3.2 In the appeal preferred before the Commissioner [Appeals] by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Mr. R.J. Oza, learned counsel appearing on behalf of the Revenue strenuously contended before us that it is apparent from the conduct of the assessee that there was deliberate mis-statement made by it as regards classification of its product, as a result, the Revenue has suffered and thus, it is a fit case of imposition of not only interest but also penalty upon the assessee. In support of such contention, Mr. Oza has placed strong reliance upon the decision of the Bombay High Court in the case of CCE & C, Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd., reported in 2007 (215) E.L.T. 23 [Bom.] 6. In order to appreciate the aforesaid question, it will be appropriate to refer to the provision contained in Section 11AB of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner [Appeals], the Appellate Tribunal or, as the case may be, the court, the interest shall be payable on such increased or further increased amount of duty." [emphasis given] 7. On plain reading of the aforesaid section, it is clear that interest can be levied where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded. In case before us, there is no dispute that there is short-payment of duty. The aforesaid section further provides in no unambiguous term that such interest can be levied if such short-payment had occasioned by reason of fraud, collusion or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or wrong classification, but no allegation of fraud, collusion, suppression or intention to evade lawful duty has been made. Therefore, for the selfsame reason, penalty also cannot be imposed. 12. With regard to the decision of the Bombay High Court in the case of CCE & E, Aurangabad [supra] referred to by Mr. Oza, with great respect to the Hon'ble Judges of the said Court, we are unable to subscribe to the view taken by Their Lordships on the plain and simple reading of the provision of Sections 11AB and 11AC of the Act as those stood at the relevant point of time. 13. We are quite conscious of the subsequent amendment by which those allegations of fraud, mis-statement, collusion etc. have been deleted by the Legislature w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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