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2019 (7) TMI 633

xcise Act, 1944 - appropriation of duty paid voluntarily, along with interest under section 11AB of Central Excise Act, 1944 - HELD THAT:- There is no dispute that the Tribunal in Collector of Customs, Madras v. TVS Whirlpool Ltd [1996 (4) TMI 232 - CEGAT, MADRAS], has held that the time-limit provided for in section 28 of the Customs Act, 1962 would also apply in such provisions of the statute that do not mandate a time-limit. The show cause notice issued in March 2006 and August 2007 for clearance effected between February 2001 and February 2005 is barred by limitation - appeal allowed - decided in favor of appellant. - Excise Appeal No: E/388 And 389/2011 - A/86233-86234/2019 - 12-7-2019 - MR C J MATHEW, MEMBER (TECHNICAL) And DR SUVENDU .....

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ugh paid in tranches, could not be delinked from the time of removal from the factory of the appellant. According to the Learned Cost Accountant, the Hon ble High Court of Karnataka had distinguished the decision relied upon in the impugned order while disposing off appeal of Revenue in Commissioner of Central Excise, Bangalore - III v. Bharat Heavy Electricals Ltd [2010 (257) ELT 369 (Kar)], which, according to him, suffices to allow the escapement from the detriment of section 11AB in their transaction. He also cited the decision of the Tribunal in their own matter, viz. Malu Sleepers (Maharashtra) Pvt Ltd v. Commissioner of Central Excise & Customs, Pune - II, [order no. A/2565-2566/15/SMB dated 26th June 2015 in appeal no. 1328-1329 .....

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e Learned Chattered Accountant should not bind a division bench as a precedent since a single member bench was without jurisdiction to decide. We do not agree with this view as the dispute is restricted to the recovery of interest under section 11AB of Central Excise Act, 1944 that has nothing to do with value. The duty liability arising from the consideration received on invoking of the escalation clause has been duly discharged. The sole point of dispute, from a legal perspective, is the scope for invoking section 11AB in absence of demand under section 11A of Central Excise Act, 1944. We take note that the show cause notice, pertaining to the orders impugned before us, makes no reference to recovery arising from additional consideration, .....

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case decided by the Apex Court, the Apex Court had held that since interest liability accrues automatically, separate written notice is not required for its recovery if it is not included in the assessment order. Therefore, it follows that only in a case where there is an assessment order determining the tax liability, interest would be liable to be recovered since it is consequential to the demand of tax. The said decision nowhere states that in a case where only recovery of interest is involved, no notice is required to be issued. In fact in the said order, it has been categorically held that if the assessment order does not include interest, demand for interest thereafter has to be made within a reasonable period. Therefore, I am unable .....

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the Hon ble Apex Court in Charanlal Sahu v. Union of India [AIR 1990 SC 1480] as under : - 9.1 The fact that the provisions of the principles of natural justice have to be complied with, is undisputed. This is well-settled by the various decisions of the Court. The Indian Constitution mandates that clearly, otherwise the Act and the actions would be violative of Article 14 of the Constitution and would also be destructive of Article 19(1)(g) and negate Article 21 of the Constitution by denying a procedure which is just, fair and reasonable. 9.2 Rules of natural justice are not embodied rules. Hence, it was not possible to make an exhaustive catalogue of such rules. Audi alteram partem is a highly effective rule devised by the Courts to ens .....

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tence and before recording the factum of recovery of short-payment only after it was brought to the notice of the respondent. Those facts are not congruent with the facts before us in this dispute and as the Hon ble High Court of Bombay has stated that the law is well settled and does not require a response in the civil appeal of re M/s Gammon India Ltd, we are not required to examine the applicability of the decisions of the Hon ble Supreme Court in re International Auto Limited to the present dispute. In re International Auto Ltd, the decision arose from the provision of section 11A(2B) in Central Excise Act, 1944 which has enabled voluntary payment of duty and interest to preclude further action under section 11A(1) of Central Excise Act .....

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