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2015 (3) TMI 1099 - CESTAT CHENNAI

2015 (3) TMI 1099 - CESTAT CHENNAI - TMI - Demand of interest - Section 11AB - Clandestine removal of goods - The adjudicating authority in his order dated 14.6.2005 has clearly discussed the applicability of interest and also rightly confirmed the demand of interest under section 11AB on the demand already paid by the respondents - Held that:- I find that the Commissioner (Appeals) has set aside the interest under section 11AB by relying on the decisions of the Hon’ble High Court and the Hon’bl .....

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etitioner : Shri B. Balamurugan, Ac (AR) For the Respondent : Ms. Minchu Mariam Punnose, Advocate ORDER Revenue has filed this appeal against the order of the Commissioner (Appeals) dated 24.8.2005. 2. The brief facts of the case are that the respondents are manufacturers of MS ingots falling under Chapter 720690. An offence case was registered against the respondents for clandestine removal of the finished goods without payment of duty. The adjudicating authority confirmed the demand of ₹ .....

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the Department and Revenue has filed this present appeal against setting aside of interest demanded under Section 11AB of the Act. 3. The learned AR for Revenue reiterates the grounds of appeal and submits that the period of dispute involved is 2001 to June 2003. It is a clear case of clandestine removal of the finished goods. The respondents have paid the duty before issuance of the show-cause notice. The adjudicating authority has correctly confirmed the demand and has also demanded interest .....

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Supreme Court in the cases of Commissioner of Trade Tax, Lucknow Vs. Kanhai Ram Thekedar - 2005 (185) ELT 3 (SC) and CCE, Pune Vs. SKF India Ltd. -2009 (239) ELT 385 (SC). 4. On the other hand, the learned counsel for the respondent reiterated the findings of the learned Commissioner (Appeals) and submits that there is no intention to evade payment of duty and also Revenue has not appealed against the Order-in-Original passed by the adjudicating authority on the reduced penalty. Since they have .....

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the adjudication order and the records, the demand of duty has been confirmed for the clandestine removal of the goods for the period 2001 to June 2003. The investigating authorities have clearly brought out the clandestine removal aspect and the case was detected on 29.7.2003 itself and the respondents paid the entire duty during the investigation itself i.e. between 2.8.2003 and 17.1.2005 on various dates. The adjudicating authority in his order dated 14.6.2005 has clearly discussed the appli .....

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me Court in the case of CCE, Pune Vs. SKF Ltd. (supra) has held that interest is payable under Section 11AB. The relevant paragraphs are reproduced as under:- 10. Sub-section (2B) of Section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him an .....

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e has not been levied or paid or has been short levied or short paid or erroneously refunded, the person who has paid the duty under sub-section (2B) of Section 11A, shall, in addition to the duty, be liable to pay interest .......It is thus to be seen that unlike penalty that, is attracted to the category of cases in which the non-payment or short payment etc. of duty is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions .....

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urangabad Bench, in its decision in The Commissioner of Central Excise, Aurangabad v. M/s. Rucha Engineering Pvt. Ltd., (First Appeal No. 42 of 2007) that was relied upon by the Tribunal for dismissing the Revenues appeal took the view that there would be no application of Section 11A (2B) or Section 11AB where differential duty was paid by the assessee as soon as it came to learn about the upward revision of prices of goods sold earlier. In M/s. Rucha Engineering the High Court observed as fol .....

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ent of interest does not arise as the duty was paid as soon as it was learnt that it was payable. Finding that provisions of Section 11A (2) and 11A (2B) were not applicable as the situation occurred in the instant, case was quite different, Section 11AB (1) was not at all applicable, and therefore, the Assessee was not required to pay interest. 13. It further held that a case of this nature would not fall in the category where duty of excise was not paid or short-paid. 14. We are unable to subs .....

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