2014 (6) TMI 822 - AT - Central Excise

Maintainability of appeal - leviability of interest on the amount of duty paid on the goods lost in transit - recovery of duty on goods lost in transit and interest thereof - Held that - applicant had preferred a revision application before the Government of India challenging the demand of duty confirmed on the loss of goods in transit and also the levy of interest, confirmed by the lower authorities. The revisionary authority after detailed discussion of all issues raised including levy of interest under Section 11AA and Sec. 11AB, had remanded the matter to the adjudicating authority for the limited purpose of quantifying the interest, under the respective provisions, for the period prior to 11-5-2001 and after 11-5-2001. Pursuant to the said remand order, the adjudicating authority has quantified the interest as Rs. 38,81,792/- for the period prior to 11-5-2001 and Rs. 6,27,339/- for the period after 11-5-2001. We find from the records that the appellant had at no point of time challenged the leviability of interest under Section 11AA or Section 11AB as directed by the revisionary authority, before any other higher forum. The learned advocate for the appellant had submitted that in the present appeal, they are challenging both the quantification as well as leviability of interest. We do not find merit in the said submission of the appellant for the reason that the revisionary authority has discussed in detail the liability to duty as well as interest, on the goods lost in transit, in the revision order and the same, in our view has attained finality. - Appeal not maintainable - Decided against assessee.

Summary

Issues: Application seeking waiver of pre-deposit of interest; Maintainability of appeal under Section 35B of the Central Excise Act, 1944; Leviability of interest on duty paid for goods lost in transit; Challenge of quantification and leviability of interest; Relationship between demand of duty on lost goods, interest, and proviso to Section 35B; Applicability of interest under Section 11BB for delay in refund.

Analysis:
1. Waiver of Pre-Deposit of Interest: The appellant sought waiver of pre-deposit of interest amounting to Rs. 45,09,141/-. The issue of pre-deposit was a key concern in the appeal before the Tribunal.

2. Maintainability of Appeal: The Revenue raised a preliminary objection regarding the maintainability of the appeal under Section 35B of the Central Excise Act, 1944. The Revenue argued that the appeal was not maintainable as the issues raised were already decided by the Government of India in a revision application.

3. Leviability of Interest on Duty Paid for Goods Lost in Transit: The advocate for the appellant contended that the issue at hand was the leviability of interest on the duty paid for goods lost in transit. The appellant argued that the levy of interest and the circumstances under Section 35B were independent, giving the Tribunal jurisdiction to hear the appeal.

4. Challenge of Quantification and Leviability of Interest: The Tribunal examined the details of the case, noting that the revisionary authority had remanded the matter to quantify interest under Sections 11AA and 11AB. The appellant challenged both the quantification and the leviability of interest. However, the Tribunal found no merit in this challenge as the revision order had already discussed the liability to duty and interest, which had attained finality.

5. Relationship Between Demand of Duty, Interest, and Proviso to Section 35B: The Tribunal emphasized that the issues of demand of duty on lost goods and interest were interlinked and covered under the proviso to Section 35B of the Central Excise Act, 1944. It was deemed inappropriate to reexamine the issue of interest already decided by the Government of India.

6. Applicability of Interest under Section 11BB for Delay in Refund: The Tribunal distinguished the present case from a previous case where interest was claimed for delay in refund. It was clarified that the issues of delay in refund and interest were distinct, leading to the dismissal of the appeal as non-maintainable.

7. Conclusion: The Tribunal dismissed the appeal as non-maintainable but acknowledged the appellant's genuine pursuit of the matter. In the interest of justice, the Tribunal allowed for the period lost in pursuing the appeal to be considered as a sufficient cause for any delay in filing a revision application before the Government of India. The stay application and appeal were disposed of accordingly.