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TMI Blog2022 (12) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... th applicable interest, is before us for the second time though, on this occasion, limited only to the recovery ordered under section 11AB of Central Excise Act, 1944 on the plea that there is a clear finding of the adjudicating authority that demand for the extended period did not lie. 2. The appellant is in the business of manufacturing 'loose zarda', by deploying raw materials in specific proportions to obtain batches of 3165 kg, and had been clearing the same to their branches upon discharge of duties of central excise on cost for the period from April 1997 to December 2001 which the jurisdictional authority had held to have been incorrectly computed after exclusion of certain essential elements. The impugned order held that the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 1170 (Tri-Ahmd)] with special emphasis on the former for distinguishing the applicability of the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Pune v. SKF India Ltd [2009 (239) ELT 385 (SC)]. 4. It is the contention of Learned Authorized Representative that liability to discharge interest being an essential condition for not proceeding with demand under section 11A of Central Excise Act, 1944 stands decided by the Hon'ble Supreme Court in re SKF India Ltd. 5. On perusal of the decision of the Hon'ble of High Court of Karnataka in re Bharat Heavy Electricals Ltd holding that '6. Having heard the counsel on both sides and on perusal of the material on record, we find that the show cause notice issued on 19-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid or erroneously refunded. The aforesaid circumstances are not applicable in the instant case. Therefore, the issuance of the show cause notice dated 19-10-2004 by invoking the provision of Section 11AB in the instant case is improper and not in accordance with the said section. 7. Learned counsel for the appellant has however relied upon the decision of the Apex Court in the case of Commissioner of Central Excise, Pune v. SKF India Ltd. [2009 (239) ELT 385 (SC)] to contend that the said provision is applicable on the facts of the present case also. We have perused the said decision and we find that we are unable to accept the contention of the learned counsel for the appellant that the said case applies to the facts of the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply the said decision to the present case.' and of that of the Hon'ble Supreme Court in re SKF India Ltd holding that '10. Sub-section (2B) of Section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). But Explanation 2 to the sub-section makes it expressly clear that such payment would not be exempt from interest chargeable under Section 11AB, that is, for the period from the first date of the month succee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough indeed completely unintended and without any element of deceit etc. The payment of differential duty thus clearly came under sub-section (2B) of Section 11A and attracted levy of interest under Section 11AB of the Act.' it is evident that the facts rest upon entirely different circumstances. 6. It is clear that the decision in re SKF India Ltd has firmly established the principle that arising from the liability for duties of central excise devolving on the assessee at the price existing at the time of clearance, notwithstanding subsequent receipt of differential, interest under section 11AB of Central Excise Act, 1944 would have to be discharged for termination of proceedings under section 11A of Central Excise Act, 1944. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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