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2015 (11) TMI 249 - CESTAT NEW DELHI

2015 (11) TMI 249 - CESTAT NEW DELHI - 2015 (329) E.L.T. 619 (Tri. - Del.) - Denial of a refund of the interest recovered by the revenue - delayed payment of duty which was later found as not sustainable - Held that:- if at all, there is any short payment of duty, the mandate of law is that a show cause notice is required to be issued as per section 11 AC of the Act which Department has failed to do so. Therefore, without issuance of the show cause notice, demand of duty cannot be confirmed agai .....

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mand of interest is not permissible. In these terms, the impugned order deserves no merits. Hence same is set aside. - Decided in favour of assessee. - Appeal No. E/51575/2014-EX(SM) - Final Order No. 52045/2015-EX(SM) - Dated:- 24-6-2015 - Ashok Jindal, Member (J) For the Petitioner : Shri B L Sharma, CA For the Respondent : Ms Ranjana Jha, DR ORDER Per Ashok Jindal The appellant is in appeal against the impugned order denying a refund of the interest recovered by the revenue vide order dated 2 .....

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o 30/09/2010 in advance. As the machine was functional during the month of July 2010 from 01/07/2010 to 15/07/2010 the appellant paid the duty on pro rata basis for 15 days. For August 2010 he paid the duty for the period 06/08/2010 to 20/08/2010 i.e. for 15 days and in September 2010 from 16/09/2010 to 30/09/2010 i.e. for 15 days. The appellant filed a abatement claim for the period October 2010 to December 2010 ₹ 20,99,821/- while sanctioning that abatement claim the Adjudicating Authori .....

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interest which was rejected by both the authorities below. Therefore appellant is in appeal before me. 3. The Ld. Counsel for the appellants submits that the appellant has paid duty for the month of July to September 2010 on the basis of number of working days machines functioned during that period. Same was accepted by the Department and no proceedings were initiated for short payment of duty by the appellant. No show cause notice was issued. No duty demand was confirmed on account of short pay .....

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submits that as per rule 10 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination Collection of Duty) Rules, 2010 the appellant is required to pay duty on the 5th of every month. The appellant has not paid full duty for this period. If machines were not functional for whole of the month in that case applicant is required to file abatement claim for the period of closer. Instead of doing so appellant paid duty for the period when the machines were functional, .....

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the appellant are not applicable to this case as none of the case laws deals with the issue of manufacturing of Tobacco. 5. Heard the parties. 6. In this case the admitted facts are that during the period July to September 2010 the appellant have duly intimated to the Department of closer of their machines and with regard to payment of duty on pro rata basis. Therefore, if at all, there is any short payment of duty, the mandate of law is that a show cause notice is required to be issued as per s .....

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