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2016 (3) TMI 708 - CESTAT KOLKATA

2016 (3) TMI 708 - CESTAT KOLKATA - 2016 (337) E.L.T. 124 (Tri. - Kolkata) - Recovery of interest under Section 11AA of the Central Excise Act, 1944 - Held that:- In the present proceedings appellant paid the entire duty within three months after being determined by Supreme Court, as required under Section 11AA of the Central Excise Act, 1944. - In view of the above observations and the settled proposition of law, order dated 24.04.2006 of the Adjudicating authority is based on a wrong premi .....

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actually incorrect, still the revised duty determined by Supreme Court stands paid within three months of such determination as per the provisions of Section 11AA(1) of the Central Excise Act, 1944, read with Explanation-I to this Section. In view of the above observations appeal filed by the appellant is required to be allowed. - Appeal No.EA-467/06 - Order No.FO/75168/2016 - Dated:- 15-2-2016 - DR. D.M. MISRA, MEMBER(JUDICIAL) AND SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner : Dr. S. .....

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944. 2. Dr. S.Chakraborty (Advocate) appearing on behalf of the appellant during hearing, as well as through written submissions, argued that AC in charge of the appellant s unit vide adjudication Orders dt.11.03.1988 and 19.05.1988 decided the classification of appellant s product Pitch Creosote Mixture under CETA 2708.11 instead of CETA 2706.00 claimed by the appellant. That duty of ₹ 84,82,950/- was demanded from the appellant under 8 periodical show cause notices for the period Septemb .....

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years after the orders of CESTAT, revenue sanctioned refunds of ₹ 84,82,950/- to the appellant during the period 04.10.2002 to 07.10.2002. That by an order dt. 28.01.2004 Apex Court reversed the orders, passed by CESTAT in favour of the appellant and held that the benefit of Notification No.121/62-CE dt.13.06.1961 and Notification No.75/84-CE dt.01.03.1984 to be admissible to the appellant only for the period from 01.09.1985 to 28.02.1986. That on receipt of Supreme Court s decision appell .....

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irmed under Rule 9(2) of the Central Excise Rules, 1944 and no such determination has been done under Section 11A of the Central Excise Act, 1944. He made the Bench go through the relevant show cause notices and adjudication orders. That the findings of the Adjudicating authority that demands were earlier confirmed under Section 11A(2) of the Central Excise Act, 1944 is thus ex-facie incorrect and contrary to the records of the case. He also relied upon the following case laws:- (a) CCE v. Eiche .....

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AA read with Explanation-I, was only payable after 3 months from the date of determination which will be the date of Apex Court s order in the case of appellant and differential duty was paid within 3 months of the date of determination. Learned Advocate relied upon Chhatisgarh High Court s decision in the case of Raipur Bright Steel & Wire Weld Industries Ltd. v. UOI [2014 (305) ELT 369(Chhatisgarh)]. (iv) That in any case there cannot be any demand for interest from the appellant, for the .....

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cable in case of restitution of a sum refunded to an assessee. It was also his case that as per case law CCE v. Orissa Concrete Products (India) Pvt.Ltd. [2001 (133) ELT 787(Tri.Kolkata)] interest under Section 11AA is payable after 3 months from 26.05.1995 when Section 11AA was introduced. Learned AR thus strongly defended the order passed by the Adjudicating authority. 4. Heard both sides and perused the case records. Issue involved in the present proceedings is whether interest under Section .....

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t on delayed payment of duty - (1) Subject to the provisions contained in section 11AB, where a person chargeable with duty determined under sub-section (2) of section 11A, fails to pay such duty within three months from the date of determination, he shall pay, in addition to the duty, interest at such rate not below ten percent and not exceeding thirty-six percent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the .....

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yment of such duty. Explanation 1. -Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, the Court, the date of such determination shall be the date on which an amount of duty is first determined to be payable. Explanation 2. -Where the duty determined to be payable is increased or further increased by the Commissioner(Appeals), Appellate Tribunal or, as the case may be, the Court, the date of such determination shall be, - .....

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he assent of the President. 4.2 One of the arguments of the appellant is that demands in the current proceedings by the show cause notices and earlier confirmed orders were not made under Section 11A(2) of the Central Excise Act, 1944. Therefore, adjudicating authority under Order-in-Original No.7/COMMR/BOL/06 dated 24.04.2006 has wrongly stated that demands were confirmed under Section 11A(2) of the Central Excise Act, 1944. It is observed that in all the show cause notices duty on Pitch Creoso .....

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brought to our notice that any duty demanded/confirmed against an assessee under Central Excise law should be deemed to have been determined under Section 11A(2) of the Central Excise Act, 1944. On the contrary appellant has relied upon Himachal Pradesh High Court s ruling in the case of CCE, Chandigarh vs. Eicher Demm (supra). In para 5, 7 & 8 of this case law Hon ble High Court made following observation:- 5.On perusal of Section 11-AA, which relates to payment of interest on delayed paym .....

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als with payment of duty under sub-section (2-B) of Section 11-A which relates to voluntary payment of duty before service of notice under Section 11-A(1). Admittedly, in the present case no notice was issued under Section 11-A till the time when the amount was deposited by the assessee. This notice was issued after three years. 7.In our considered opinion it is the first proviso which applies in the present case. The order, instruction or direction by the board can be issued in any manner. In t .....

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iew that no penalty or interest could be levied on the assessee, firstly, because there is no order passed under Section 11-A and secondly, there is nothing on record to show that the assessee did not deposit the amount within 45 days of being informed of his liability. In fact, it is not the case of the Department that the assessee did not deposit the amount within 45 days. In the present proceedings appellant paid the entire duty within three months after being determined by Supreme Court, as .....

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