2017 (10) TMI 1034

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..... : The appellant is in appeal against the impugned order denying a refund of the interest recovered by the revenue vide order dated 29/11/2013. 2. Briefly stated facts of the case are that the appellants are engaged in packing of un-manufacture tobacco in retail pouches bearing brand name "Laxmi Chhap Zarda" falling under chapter sub heading 24011090 of schedule to the Central Excise Tariff Act, .....

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..... nterest. Against the said order, the appellant is in appeal before me. 3. The Ld. Counsel for the appellants submits that the appellant has paid duty for the month of July to September 2010 on the basis of number of working days machines functioned during that period. Same was accepted by the Department and no proceedings were initiated for short payment of duty by the appellant. No show cause no .....

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..... has not paid full duty for this period. If machines were not functional for whole of the month in that case applicant is required to file abatement claim for the period of closer. Instead of doing so appellant paid duty for the period when the machines were functional, which is not the mandate of the rule. Therefore, appellant is required to pay interest for the delayed payment. The Ld. AR furthe .....

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..... ate of law is that a show cause notice is required to be issued as per section 11 AC of the Act which Department has failed to do so. Therefore, without issuance of the show cause notice, demand of duty cannot be confirmed against the appellant and consequently be recovered from the appellant. In case when demand is not sustainable question of payment of interest does not arise. In this case deman .....

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..... ella Rubber Works (Supra) wherein it was held that without issuance of the show cause notice adjustment is not permissible. In this case also no show cause notice has been issued to the appellant. Therefore, adjustment of demand of interest is not permissible. In these terms, the impugned order deserves no merits. Hence same is set aside. The refund claim of interest is allowed. Appeal is allowed .....

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