TMI Blog2020 (10) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 34 lakhs, earlier confirmed in Jan., /Feb., 1995, although set aside by the Commissioner (Appeals) earlier in June, 1995, was restored by the subsequent order of the Commissioner (Appeals) dated 26.12.2000. As the determination of the duty had taken effect in Jan./Feb., 1995, therefore, due to delay in payment of duty, the assessee was liable to pay interest from August, 1995. This Tribunal held that final determination can be said to have been made on 26.12.2000 with passing of the order of the Commissioner (Appeals) after remand. In the facts of the present case also, the Commissioner (Appeals) has redetermined the duty liability by his order dated 28.02.2015, as the demand was set aside for the period 14.01.2007 to 09.03.2010 and only re-determined for the period August, 2005 to Jan. 2007 - the appellant /assessee is liable to pay interest for one month i.e. from 1.3.2015 to 31.03.2015, which they have admittedly paid. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 51905 of 2018-SM - FINAL ORDER NO.50873/2020 - Dated:- 26-10-2020 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Hemant Bajaj with Ms. Sukriti Das, Advocates for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Rule 2 (j)of the Standard Weight Measures (Packaged Commodity) Rules and thus, the same are liable to be assessed on RSP based valuation under Section 4 A of the Central Excise Act. 6. Show cause notice dated 01.02.2005 was issued for the period 8.3.2004 to 28.09.2004 proposing to demand differential excise duty amounting to ₹ 2,45,643/- on wholesale packages (of retail packs weighing upto 10 gms.). This show cause notice was adjudicated by the Dy. Commissioner confirming the proposed demand vide an order-in-original no.37/2005 dated 25.08.2005 and further, imposing penalty of ₹ 25,000/-. The first appeal before the Commissioner (Appeals)was rejected by the Order-in-Appeal dated 23.01.2006 and further, the appeal before this Tribunal was dismissed by the Tribunal confirming the demand by Final Order No.738/2011 dated 12.08.2011 reported at 2012 (276) ELT 77. 7. A show cause notice dated 16.09.2005 was issued for the subsequent period 29.09.2004 to 31.07.2005 proposing demand of ₹ 4,75,733/- on the same allegations. The demand was confirmed vide an Order-in-Original dated 30.11.2005 with interest and further penalty of ₹ 25,000/- was imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007, there was no statutory requirement of declaring RSP on the Retail Packs weighing upto 10 gms and hence, not liable to be assessed under Section 4 A of the Excise Act. 14. In order to buy peace with the Department, the appellant deposited the differential duty of ₹ 10,74,940/- for the period August, 2005 to 13.01.2007 on 31.03.2015 and also paid interest of ₹ 15,903/- for the period 1.3.2015 to 31.03.2015 i.e. from the date of Order-in-Appeal dated 28.02.2015 till the date of deposit i.e. 31.03.2015, under intimation to the Department. 15. Further, being aggrieved with the imposition of penalty vide Order-in-Appeal dated 28.02.2015, the appellant preferred appeal No.E/52968/2015 before this Tribunal. Further, 22 appeals were filed by the Revenue relating to the period 14.01.2007 to 09.03.2010 contesting the dropping of demand of differential duty. This Tribunal vide Final Order No.56217-56239/2017 was pleased to allow the appeal of the assessee, setting aside the penalty imposed and was further pleased to dismiss all the appeals filed by the Revenue. 16. During the pendency of the appeals before the Tribunal, the Department vide letters dated 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the letter issued by the Department advising the appellant to pay interest is not an appealable order and also further held on merits that interest is payable under Section 11 AB not under Section 11 AA of the Excise Act. 20. Being aggrieved with the aforesaid impugned order, the appellant is in appeal before this Tribunal, amongst others, the following grounds:- 21. Ld. Counsel for the appellant urges that the impugned order passed by the ld. Commissioner (Appeals) is self-contradictory and deserves to be set aside as the ld. Commissioner (Appeals) held in the impugned order that the appeal filed by the appellant against the letter dated 29.04.2016 is not maintainable in terms of Section 35 of the Excise Act and further in support of his contention, he places reliance on the following decisions:- (1) Gujarat Container Ltd. 2019 (370) ELT 476 (Tribunal-Ahmd.). (2) Vikash J.Shah 2016 (334) ELT 491 (Madras) (3) Kancor Ingredients Ltd. -2017(4) GSTL 240 (Tri.-Bang.) (4) Bhagwati Gases Ltd 2008 (226) ELT 468 (Tri.-Delhi) 22. Ld. Counsel further urges that as during the relevant period, the appellant paid excise duty b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 26.12.2000. It was the contention of the Revenue that since the demand of ₹ 34 lakhs, earlier confirmed in Jan., /Feb., 1995, although set aside by the Commissioner (Appeals) earlier in June, 1995, was restored by the subsequent order of the Commissioner (Appeals) dated 26.12.2000. As the determination of the duty had taken effect in Jan./Feb., 1995, therefore, due to delay in payment of duty, the assessee was liable to pay interest from August, 1995. This Tribunal held that final determination can be said to have been made on 26.12.2000 with passing of the order of the Commissioner (Appeals) after remand. The Tribunal applying the ratio of the ruling of the Hon ble Bombay High Court in the case of Blue Star Another 2009-TIOL-659-HC-MUM, held that the assessee is not liable to pay interest for the period Jan./Feb, 1995 to December, 2000. 27. In further appeal by the Revenue, the Hon ble Madras High Court, reported in 2016 (333) ELT 259 (Madras), framed the issue whether CESTAT has not erred in law in holding that duty liability arises and commences from the date of the determination and not from the date of the actual liability, especially when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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