TMI Blog2000 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... . After some correspondence on the issue, it filed C.W.P. No. 1174 of 1974 for quashing of the demand of cess. Other manufacturers of vegetable oil also filed writ petitions challenging the levy or cess under the 1966 Act. All such petitions were dismissed by a Division Bench of the Court on 29-11-1978 - Dhanpat Oil and General Mills v. Union of India and Others. [I.L.R. (1979) 2 Punjab and Haryana 321]. The petitioner challenged the order of the High Court in S.L.P. No. 3271 of 1979, which was later on converted into Civil Appeal No. 2143 of 1979. While issuing notice of the S.L.P. on 4-5-1979, the Supreme Court stayed realisation of the amount of cess in dispute subject to furnishing of bank guarantee by the petitioner. The appeals filed by other manufacturers of vegetable oil were dismissed by the Supreme Court vide judgment dated 8-7-1985 M/s. Dhanpat Oil General Mills v. Union of India and Others, [1985 (21) E.L.T. 636 (S.C.) = AIR 1985 Supreme Court 1255]. However, the appeal filed by the petitioner remained pending for another two years and over six months and the same was ultimately dismissed on 18-2-1998. Thereafter, the Superintendent, Central Excise, Moga Range, issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court, it had avoided its liability to pay the amount of cess, they cannot be deprived their right to recover interest on the amount which could not be collected due to the stay orders passed by the High Court and the Supreme Court. 6.Shri R.L. Batta, Senior Advocate, counsel for the petitioner, argued that the levy of interest on the arrears of cess could be declared ultra vires to Section 11AA of the 1944 Act because the provisions of that section have not been engrafted in the provisions of 1966 Act and the 1983 Act. Learned counsel referred to Section 15 of the 1966 Act and Section 3 of the 1983 Act, and argued that the provisions of Section 11AA of the 1944 Act cannot be held applicable to the recoveries sought to be made under those enactments because after 26-5-1995, i.e. the date with effect from which Section 11AA was inserted in the 1944 Act, no corresponding amendment had not been made in the 1966 Act and the 1983 Act. Learned Counsel then argued that in the absence of a statutory provision entitling the respondents to charge interest on the arrears of cess, the respondents cannot recover interest at the rate of 20% under Section 11AA, more so, because no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve effect, as if for the words "one year" the words "five years" were substituted : Provided further that where the amount of duty which has not been levied or paid or has been short-levied or short paid or erroneously refunded is one crore of rupees or less a notice under this sub-section shall be served by the Commissioner of Central Excise or with his prior approval by any officer subordinate to him : Provided also that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is more than one crore rupees, no notice under this sub-section shall be served without the prior approval of the Chief Commissioner of Central Excise. Explanation. - Where the service of notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. Central Excise(2) Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and collection of duties of excise on any produce specified in the Second Schedule as they apply in relation to the levy and collection of duty payable to the Central Government under that Act." xxx xxxxxx The 1983 Act "Levy and3. collection of cess on vegetable oils. - xxxxxx xx xx xx xx xx xx The provisions of the Central Excises and Salt Act, 1944, and the rules made thereunder, including those relating to refunds and exemptions from duty shall, so far as may be, apply in relation to the levy and collection of the said duty of excise as they apply in relation to the levy and collection of duty of excise on vegetable oils under that Act." 9.A perusal of the provisions quoted above shows that when the 1966 Act was enacted by the Parliament, the Central Excise and Salt Act (now known as Central Excise Act, 1944) was in force. Therefore, instead of separately incorporating the provisions relating to levy and recovery of duty under the 1944 Act and the rules made thereunder, including those relating to the refund and exemption from duty, the provisions of the 1944 Act were made applicable for levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, 1956, makes applicable to the assessment, reassessment, collection and enforcement on Central Sales Tax the provisions relating to offences and penalties contained in the State Acts as if the Central Sales Tax was a State Sales Tax: but Section 9(2A) makes no reference to interest. There is no substantive provision requiring the payment of interest on Central Sales Tax. There is, therefore, no substantive provision in the Central Sales Tax Act which obliges the assessee to pay interest on delayed payment of Central Sales Tax." 12.In view of the above discussion and the law laid down by the Supreme Court, we hold that the respondents cannot charge interest from the petitioner on the delayed payment of cess by invoking Section 11AA of the 1944 Act. 13.We also agree with the learned counsel for the petitioner that Section 11AA of the 1944 Act cannot in terms be applied for recovery of the interest because no determination of the duty payable by the petitioner had been made in accordance with Section 11A(2) of the 1944 Act. 14.However, we are unable to agree with the learned counsel for the petitioner that in view of the stay orders passed by the Supreme Court and the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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