TMI Blog2016 (8) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... which is much before 28.09.1996. Further the Board’s Circular is binding on the Revenue in view of the various judgments. - Decided in favour of the appellant with consequential relief - E/2000/2012 - Final Order No. 20653/ 2016 - Dated:- 24-8-2016 - Shri S. S. Garg, Judicial Member Shri Cherian Punnoose, Advocate Bangalore For the Appellant Smt Ezil Mathi, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the Order-in-Appeal dated 02.04.2012 passed by the Commissioner of Central Excise, Mangalore rejecting the refund claim filed by the appellant on the ground that the appellants are liable to pay interest under Section 11AB of the Central Excise Act 1944. Briefly the facts of the present case are that the appellants are manufacturers of excisable goods falling under Chapter No. 4006.10 of Central Excise Tariff Act, 1985. They filed a refund claim on 28.05.2010 for ₹ 3,38,515/- being the interest paid for the delay in discharging adjudication levies imposed on them. Based on the intelligence that the appellants were evading central excise duty on their product by floating concerns and resorting to clandestine clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t vide their letter dated 09.02.2010 demanded ₹ 3,41,556/- as interest which was recalculated under Section 11AA of the Central Excise Act. Thereafter vide letter dated 18.02.2010, the appellant once again submitted that the circular dated 26.08.2002 issued by the Board clarified that Section 11AB could be invoked only in respect of clearances made after the introduction of the said Section i.e. w.e.f. 28.09.1996. Thereafter an attachment notice was issued by the Deputy Commissioner in respect of interest amount of ₹ 3,38,515/- and the appellants were made to deposit the said amount in installment up to 09.04.2010 and thereafter the appellant filed a refund claim for the interest amount of ₹ 3,38,515/- on the ground that the interest was erroneously recovered by the department. Thereafter a show-cause notice was received by the appellant dated 09.06.2010 denying the refund claim for the interest paid by the appellant. The show-cause notice was controverted by the appellant but the Assistant Commissioner vide Order-in-Original dated 25.08.2010 rejected the refund claim filed by the appellant on the ground that Section 11AA of the Central Excise Act, 1944 applies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a completely new ground. In this regard he placed reliance on the following decisions: (i) Nilos India Pvt. Ltd. Vs. CC, Chennai 2009 (241) E.L.T 270 (Tri.-Chennai) (ii) Tata Johnson Controls Automotive Vs. CC, Mumbai -2004 (167) ELT 93 (Tri.-Mumbai) (iii) Reckitt Colman of India Ltd. Vs. CCE 1996 (88) ELT 641 (SC) (iv) Curekraft Chemicals Pvt. Ltd. Vs. CCE, Chennai 2009 (247) ELT 506 (Tri.-Chennai) (v) Essar Steel Ltd. Vs. CC, Ahmedabad 2004 (177) ELT 550 (Tri.-Mumbai) (vi) Tamilnadu Textile Corporn, Ltd. Vs. CCE, Coimbatore 2009 (246) ELT 598 (Tri.-Chennai) (vii) MTR Foods Ltd. Vs. CCE, Bangalore 2011 (22) STR 342 (Tri.-Bang.) (viii) Mcnally Bharat Engg. Co. Ltd. Vs. CCE, Ranchi 2004 (168) ELT 249 (Tri.-Kolkata) (ix) Nandi Sahakari Sakkare Karkhane Niyamit Vs. CCE, Belgaum 2004 (169) ELT 191 (Tri.-Bang.) (x) Godrej Industries Ltd. Vs. CCE, Mumbai 2008 (229) ELT 484 (SC) 4.1. He further submitted that the appellants are not liable to pay interest even under Section 11AB of the Central Excise Act 1944 in view of the Board s Circular dated 26.08.2002 which clarified Section 11AB and observed that Section 11AB can be invoked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act 1944. There was no proposal in the show-cause notice to levy interest on duty demanded for the clearances made during the said period. He further submitted that the Revenue cannot go beyond the show-cause notice and confirm or demand something which is not there in the show-cause notice. For this he relied upon the decision of the Madhya Pradesh High Court in the case of C. Cus. C.Ex. Bhopal Vs. Tirupati Steel Industries as reported in 2005 (182) E.L.T 149 (M.P) wherein it has been held that the liability to pay interest under Section 11AA does not arise when it is not proposed in the show-cause notice to levy interest on duty. 5. On the other hand the learned AR submitted that the appellant is liable to pay interest on duty immediately after the expiry of three months from the date on which duty demand is confirmed by the original authority. She further submitted that the department is entitled to demand interest under Section 11AB even if this Section has not been invoked in the show-cause notice and is not resorted to in Order-in-Original because the interest liability is retrospective in nature. In support of her submission, she relied upon the following case-laws: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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