2009 (4) TMI 600 - AT - Central Excise

Summary

Issues:
1. Demand of interest under Section 11AA instead of Section 11AB.
2. Stay of recovery of interest and release of attached goods.
3. Power of Tribunal to grant stay and interim relief.
4. Liability to pay interest under Section 11AA.
5. Release of goods and early hearing of appeal.

Analysis:

1. The appellant sought relief for early hearing of the appeal and stay of recovery of interest under Section 11AA instead of Section 11AB. The contention was that interest under Section 11AA was ordered by the Commissioner (Appeals) without a proposal in the original show cause notice. However, the Tribunal found it premature to decide the merits of the case at that stage.

2. The Department argued that failure to mention the correct law provisions in the show cause notice did not prevent them from demanding interest under Section 11AA. The Tribunal had previously concluded on the liability to pay interest during the appeal, and the appellant could not reopen the issue through a miscellaneous application. The Tribunal emphasized that there was no power of review for such orders.

3. The Tribunal discussed the power to grant stay as incidental to its appellate jurisdiction, citing various legal precedents. It highlighted the need to balance granting interim relief with statutory limitations and legal principles. The Delhi High Court's ruling emphasized the appellate authority's inherent power to grant interim relief.

4. The issue of liability to pay interest under Section 11AA due to non-reference in the show cause notice was addressed. The Tribunal referred to a Supreme Court judgment, stating that the factual foundation for claiming interest was crucial, regardless of the correct procedure's mention. Mere failure to cite the correct law provision did not exempt the assessee from paying interest.

5. Regarding the release of attached goods, the Tribunal noted the delay in approaching for early hearing and seeking release. While granting early hearing of the appeal, the Tribunal rejected the relief for the release of goods and recovery of interest. The appeal was scheduled for final hearing on a specified date.

In conclusion, the Tribunal's decision balanced the legal arguments presented by both parties, emphasizing the importance of following statutory provisions and legal principles while considering the issues of interest recovery, stay applications, and release of attached goods.