TMI Blog2017 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... (AR) for the appellant Shri Vinod Awtani, Chartered Accountant for the respondent Order M/s RPG Life Sciences Ltd was issued with show cause notice dated 11 th June 2002 demanding duty of ₹ 23,35,424/- under section 11A of Central Excise Act, 1944 for the period from 22 nd December 1999 to 30 th June 2000 on clearance of diphenoxylate hydrochloride from their unit at Belapur to their unit at Ankaleshwar. The original authority vide order no. 44/COMMR/04-05 dated 23 rd February 2005, with the finding that the clearances were effected at ₹ 20,240 per kg instead of the usual price of clearance at ₹ 25,000, that determination of price under rule 6(b)(ii) of Central Excise Valuation Rules, 1975 was valid onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to text of Section 11AB, it is evident that there is no discretion regarding the rate of interest. Language of Section 11AB(1) is clear. The interest has to be at the rate not below 10% and not exceeding 36% p.a. The actual rate of interest applicable from time to time by fluctuations between 10% to 36% is as determined by the Central Government by notification in the Official Gazette from time to time. There would be discretion, if at all the same is incorporated in such notification in the gazette by which rates of interest chargeable u/s. 11AB are declared. The second aspect would be whether there is any discretion not to charge the interest u/s. 11AB at all and we are afraid, language of Section 11AB is unambiguous. The person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise, Visakhapatnam, which reads thus : In these circumstances, there is no justification on the part of the department to impose penalty u/s. 11AC as well as under Rule 173Q of the Central Excise Rules, 1944. Consequentially, no interest also is payable. In the matter, penalty u/s. 11AC is held non-imposable because the amount of duty was paid before issuance of show cause notice. The observation consequentially no interest is also payable , according to Advocate Shri Kolte, was confirmed by the Hon ble the Supreme Court while dismissing the appeal of the department. First of all, with due respect, it must be said that on going through the entire judgment of the Tribunal at Bangalore, there does not appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section. It is evident that explanation has taken care to charge the interest on the difference amount if the amount of duty payable as ascertained by the assessee and the amount of duty payable as ascertained by the Central Excise Officer, is different. Thus, even if the assessee pays the short duty by virtue of liberty granted by sub-section (2B) of Section 11A, he is liable to pay interest, on the same even if the amount is paid, and he is liable to further interest also on the amount of short duty as ascertained by the department if that exceeds the self-assessment and to that extent. By this explanation, we are convinced that even if no notice is issued by the department because it agrees with the amount of short duty paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice u/s. 11A(1) are prohibited so far as duty paid. It does not make any reference, much less prohibits issuance of show cause notice for the purpose of according an opportunity to the assessee to show cause as to why interest may not be charged or penalty may not be imposed. The department would be justified in issuing show cause notice pertaining to duty as well if the duty as ascertained by the assessee himself and paid is less than duty as prima facie ascertained by the officer of Central Excise. In any case, we are unable to agree with the submission by learned Counsel Shri Kolte that on payment of short duty as under sub-section (2B), before issuance of show cause notice, no interest u/s. 11AB can be charged, by virtue of por ..... X X X X Extracts X X X X X X X X Extracts X X X X
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