TMI Blog2015 (11) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ven assent to the aforesaid amendment on 26.05.1995. Insofar as the appellant is concerned, in his case, duty had already been determined prior to coming into force of this amendment inasmuch as Order-in-Original confirming the duty was passed on 28.01.1994 - when the appellant as well as its counsel knew that the issue as to whether the interest is payable or not on other grounds had already been foreclosed in the earlier writ petition, the counsel for the appellant did not make any submission with regard to the plea raising the issue in Show Cause Notice and limited his prayer from the date from which the interest was to be paid. - when this issue was raised and abandoned in the first writ petition which was dismissed as withdrawn, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy involved in the instant appeal. There was a dispute about the payment of excise duty by the appellant. Show Cause Notice dated 06.04.1993 was issued to the appellant invoking the proviso to Section 28 (1) of the Customs Act, 1962 (hereinafter referred to as 'Act'). This was adjudicated upon by passing Order-in-Original dated 28.01.1994 under Section 28(2) of the Act confirming the demand. The appellant filed appeal thereagainst which was allowed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT') on 20.05.1999. The order of the CEGAT was challenged by the Department by filing appeal in this Court. This court allowed the appeal of the Department on 14.08.2001 thereby setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition. In paragraph 6 and 7 of the counter affidavit filed by the respondent the following averments were made: - 6. I say that the petitioners are contesting the above communication dated 04.07.02 from the Respondent No.6 through this present writ petition much after lapse of one and half year. I say that the Petitioners have availed the facility to clear the dues in installments starting from 28.11.2001 to 31.12.2003 (2 years) on the basis of the communication dated 04.07.2002 from the Addl. Commissioner. I say that the petitioner being aware of the interest liability as stated in the respondents communication 04.07.2002 and having availed the facility of making payments in installments are wholly unjustified to challenge the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also in respect of the calculations made by the respondent. At this stage, we may mention that there was an amendment in the Customs Act in the year 1995 which came into effect from 26.05.1995. By the said amendment, Section 28(1) was amended and new provision in the form of Section 28AA was also inserted. Insofar as Section 28 is concerned, vide amendment in the said provision, new Section 28 introduced the provision for payment of interest as well. Simultaneously, with the insertion of new Section 28AA, provisions for interest on delayed payment of duty was introduced. Section 28AA, inter alia, provided that where a person chargeable with duty determined under sub-Section (2) of Section 28 fails to pay such duty within three months f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n challenged the demand of this interest by filing Writ Petition No. 338 of 2006 which has been disposed of by the impugned judgment of the High Court. Before the High Court, the only argument raised by the learned counsel for the appellant was that there was no failure to pay the duty within three months from the date Section 28AA of the Act had come into force and in these circumstances, interest could not be levied upon the appellant under the said provision even with effect from 26.08.1995. It was further argued that, if at all, the interest was leviable, it could only be from the expiry of three months of the order of the Supreme Court passed on 14.08.2001. This argument of the counsel for the appellant is categorically noted in paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the case proceeded in the courts below, we feel that the appellant cannot be allowed to raise this question. Mr. K.Radhakrishnan, learned senior counsel appearing for the Department, has drawn our attention to the Order dated 02.08.2004 which was passed in Writ Petition No. 1278 of 2004. His submission was that in the earlier round of litigation before the High Court when the demand of interest was questioned, it was given up inasmuch as after arguments on this issue, the counsel for the appellant had withdrawn the writ petition. At that time, while allowing the appellant to withdraw the writ petition, the dispute was confined only to the calculation of interest as is clear form the order dated 02.08.2004 itself which specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X
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