TMI Blog2016 (4) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... determination under Section 11A(2) are treated alike irrespective of the presence or absence of fraud, collusion, etc. Getting back to the cases on hand, it could be seen that the periods, in respect of which, the show cause notices were issued, were all from 1997 to 2000. The show cause notices covered by the Order in Original bearing Nos.18/2000 and 54/2000 were dated 2.4.1998, 1.7.1998, 18.11.1998, 1.4.1999, 30.7.1999 and 1.12.1999 as well as 5.4.2000 and 25.4.2000 respectively. The show cause notices covered by the Orders in Original bearing Nos.42/2001 and 43/2001 were exactly dated 11.5.2001. Hence, out of the four cases on hand, two relate to the show cause notices issued on the date, on which, the amendment to Sections 11AB and 11AA came into force. In respect of the remaining two cases, they cannot be covered by the amendment introduced with effect from 11.5.2001. In so far as the cases where show cause notices were issued before 11.5.2001, it is seen from all the show cause notices, the Orders in Original and the orders of the Appellate Authority that there was no allegation of fraud, collusion, misrepresentation, etc. Even the communication of the Superintendent da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also engaging another company as their consignment agent and is effecting clearance through their consignment agent. 4. By show cause notices bearing Nos.541/98, 1092/98, 216/98, 273/ 99, 685/99 and 1094/99 respectively dated 2.4.1998, 1.7.1998, 18.11.1998, 1.4.1999, 30.7.1999 and 1.12.1999 relating to various periods namely 9/97 to 12/97, 1/98 to 4/98, 5/98 to 8/98, 9/98 to 12/98, 1/99 to 4/99 and 5/99 to 8/99, the appellant/assessee was called upon to show cause as to why a demand for additional duty of excise to the total extent of ₹ 20,27,588/- should not be demanded for adopting a lower assessable value at the time of removal of the goods. 5. All these six show cause notices resulted in an Order in Original bearing No.18/2000 dated 29.2.2000, confirming the demand of duty to the tune of ₹ 20,27,588/-. No interest was demanded, but a penalty of ₹ 500/- was imposed. This Order in Original was confirmed in an order in appeal No. 178/2003 dated 28.11.2003. 6. Similarly, two show cause notices bearing Nos.335 and 387/2000 respectively dated 5.4.2000 and 25.4.2000 relating to the period September 1999 and 10/99 to 12/999 were issued demanding duty. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay interest to the tune of ₹ 26,68,917/- on the ground that under Section 11AB of the Central Excise Act, 1944, the assessee is liable to pay interest, if any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, after a determination is made under Section 11A(2). (ii) The assessee gave a reply dated 28.1.2014 to the demand. But, the contentions raised by the assessee were rejected by the Superintendent by an order dated 14.3.2014 on the ground that the liability to pay interest is automatic and that even if interest is not demanded in the show cause notice or Order in Original, the same can be demanded at any point of time. 12. The above reply of the Superintendent compelled the assessee to make four petitions before the Tribunal in Misc. Petition Nos.40865 to 40868/ 2014 for clarification and rectification. The Tribunal rejected the petitions on the ground that in view of Section 35C(2), the Tribunal is entitled to only rectify any mistake apparent on the record or amend any order, if the mistake is brought to its notice. Also the petitions were filed beyond six months. Therefore, the Tribunal held that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due from such a person under Sub-Section (2) of Section 11A; (iii) If the duty, so determined under Section 11A(2) in the manner prescribed above, was not paid within three months from the date of such determination, the person becomes liable to pay interest under Section 11AA, at a rate not below 10% and not exceeding 30%, from the date immediately after the expiry of the said period of three months till the date of payment of such duty; and (iv) If the duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or the Rules made thereunder, with intent to evade payment of duty, the person liable to pay duty as determined under Section 11A(2) should also pay interest at a rate not below 10% and not above 30% from the first date of the month succeeding the month, in which, the duty ought to have been paid under the Act. 18. Therefore, the provisions of Section 11A, 11AA and 11AB as they stood before 11.5.2001, made a clear distinction between two categories of cases namely (a) cases where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of payment of such duty : Provided that where a person chargeable with duty determined under Sub-Section (2) of Section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal, National Tax 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, National Tax Tribunal or, as the case may be, the court, the date of such determination shall be, - (a) for the amount of duty first determined to be payable, the date on which the duty is so determined; (b) for the amount of increased duty, the date of order by which the increased amount of duty is first dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or from the date of such erroneous refund, as the case may be, but for the provisions contained in Sub-Section (2) of Section 11A, till the date of payment of such duty. (2) For the removal of the doubts, it is hereby declared that the provisions of Sub-Section (1) shall not apply to cases where the duty became payable before the date on which the Finance (No.2) Bill, 1996 receives the assent of the President. Explanation 1 - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest shall be payable on such reduced amount 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. Interest on delayed payment of duty - (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay the duty as determined under Sub-Section (2), or has paid the duty under Sub-Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luntarily after determination of the amount of duty under Section 11A, the amendment stipulated a minimum rate of interest at 10% per annum and a maximum rate of interest at 36% per annum. But, in other cases, the minimum rate of interest was maintained at 18% per annum. Except this, the distinction between the two categories of cases was diluted. 23. After amendment with effect from 8.4.2011, Section 11AA itself is removed. Therefore, all types of cases where there is a determination under Section 11A(2) are treated alike irrespective of the presence or absence of fraud, collusion, etc. 24. Having seen the manner, in which, the amendments were brought forth in 2001 and 2011, if we get back to the cases on hand, it could be seen that the periods, in respect of which, the show cause notices were issued, were all from 1997 to 2000. The show cause notices covered by the Order in Original bearing Nos.18/2000 and 54/2000 were dated 2.4.1998, 1.7.1998, 18.11.1998, 1.4.1999, 30.7.1999 and 1.12.1999 as well as 5.4.2000 and 25.4.2000 respectively. The show cause notices covered by the Orders in Original bearing Nos.42/2001 and 43/2001 were exactly dated 11.5.2001. 25. Hence, out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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