2010 (5) TMI 436 - AT - Central Excise

Waiver of pre-deposit interest delay in payment of duty - Right to appeal is a statutory right and the same can be subject to various conditions - a person aggrieved by an order of the original Authority desiring to avail the benefit of the appellate jurisdiction can avail such remedy subject to conditions imposed or attached thereto - appellant has to deposit the amount determined by the lower authority Held that - It cannot be disputed that if an assessee withholds the public money and utilises the same for himself without surrendering the benefit so derived from such utilisation in favour of public exchequer it would amount to unjust enrichment - duty liability arising in the course of the adjudication proceedings before the authorities and appropriate steps being taken by the authorities concerned to safeguard the revenue while allowing the assessees to take the benefit of various facilities granted under the statutory provisions - appellant has made out the case as regards the penalty amount but no case has been made out as far as interest amount is concerned - application is partly allowed and the penalty amount is waived till the disposal of the appeal

Summary

Issues: Liability for interest under Section 11AB without determination under Section 11A (2), applicability of exemption notifications, interpretation of Sections 11AB, 11A (2), and 11A (2B), statutory right to appeal and deposit requirements, impact of Karnataka High Court judgment on limitation, recovery of interest and imposition of penalty under Central Excise Act.

Liability for Interest under Section 11AB without Determination under Section 11A (2): The appellants contested the interest demand of Rs. 16,46,831/- and penalty of Rs. 15,00,000/- imposed by the Joint Commissioner, arguing that no liability was determined under Section 11A (2) nor was there payment under Section 11A (2B) to warrant interest under Section 11AB. The learned advocate cited a Karnataka High Court decision emphasizing the necessity of determination under Section 11A (2) before demanding interest under Section 11AB, while the DR supported the authority's right to demand interest based on the facts of the case.

Applicability of Exemption Notifications and Interpretation of Sections 11AB, 11A (2), and 11A (2B): The appellants, engaged in cement and clinker manufacturing, claimed exemption benefits under specific notifications, leading to a dispute over duty payment on clinkers consumed captively. The Tribunal's order favored the Revenue, prompting an appeal to the Apex Court. During this process, interest payment was demanded by the authority, contested by the appellants. Section 11AB requires interest payment along with duty in cases of short levy or payment, as determined under Section 11A (2) or paid under Section 11A (2B). The sections outline the duty determination process by the Central Excise Officer and the voluntary duty payment provision, respectively.

Statutory Right to Appeal and Deposit Requirements: The judgment emphasized the statutory right to appeal subject to conditions, including the deposit of the lower authority's determined amount. Failure to pay the duty determined by the lower authority can lead to unjust enrichment for the assessee, necessitating compliance with Section 11A (2B) to avoid rendering the statutory provisions ineffective. The judgment highlighted the importance of safeguarding revenue while allowing assessees to utilize statutory provisions for rights determination.

Impact of Karnataka High Court Judgment on Limitation, Recovery of Interest, and Imposition of Penalty under Central Excise Act: The Karnataka High Court's decision in a similar case focused on the bar of limitation and the necessity of adjudication under Section 11A (2) before levying interest and penalty. In the present case, the Tribunal differentiated the issues raised, indicating that the Karnataka High Court judgment did not directly address the interplay between Sections 11AB and 11A (2B). The Tribunal partially allowed the appeal, waiving the penalty amount pending appeal disposal and directing the appellants to deposit 60% of the interest amount within a specified timeframe.