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2018 (4) TMI 659

Section 11A(2) or paid under Section 11A(2B) - Held that: - no demand of interest can be made beyond the period of limitation when the Revenue has failed to show any ground for invocation of longer period of limitation - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, VADODARA-II Versus M/s GUJARAT NARMADA FERTILIZERS CO LTD [2012 (4) TMI 309 - GUJARAT HIGH COURT], where it was held that when the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order in original, to our mind the respondent was not liable to pay even the basic duty - appeal dismissed - decided against Revenue. - E/2926/06 - A/85694/2018 .....

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Central Excise Rules, 2001/2002. The demand show-cause notice was set aside by Commissioner and aggrieved by the said order, Revenue is in appeal before this Tribunal. 3. Learned AR argued that before issue of show-cause notice letters dated 27.09.2003 and 10.12.2003 were written to the respondent to pay interest. The show-cause notice was issued only when the respondent failed to pay interest payable by them. Learned AR pointed out that the Commissioner has dropped the demand essentially on the ground that the respondent were entitled to avail the CENVAT credit of the duty paid on the LPG captively consumed by them. Consequential there was no loss to the Department when the respondent chose not to pay duty on cenvatable LPG captive consum .....

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pse in the entire exercise of revenue neutral. He argued that in these circumstances the allegation of suppression and mis-representation cannot survive. He pointed out that during the period in dispute Section 11AA required to determination of duty under Section 2 of Section 11A as a precondition for demand of interest. Similarly during the disputed period Section 11AB also mandate demand of interest only in cases of duty short paid and or erroneously refunded when it was on account of fraud, collusion, wilful mis-statement, suppression of fact, etc. and there was a determination of duty under Section 2 of Section 11A. He argued that the Revenue has not challenged bonafide of the respondent as confirmed by the Commissioner in his order. He .....

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provision of limitation to demand of interest. He has particularly relied on decision of Hon'ble High Court of Gujarat in the case of Gujarat Narmada Fertilizers Co. Ltd. (supra). In the said decision of Hon'ble High Court of Gujarat it has been observed as under:- 11. In the present case, when the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order-in-original, to our mind the respondent was not liable to pay even the basic duty. But for the respondent voluntarily making payment of such duty short-paid, it was not open for the Department to recover the same under sub-section (1) of Section 11A of the Act. In absenc .....

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