2016 (10) TMI 276 - HC - Central Excise

Demand of interest - whether the petitioner s liability was to pay interest under section 11AA or section 11AB of the Act and if it was under the former, such liability would relate to the date of clearances - Held that - the statute while creating a new provision for charging interest granted a moratorium of three months in cases where duty had remained unpaid on the date of introduction of the interest provision. If the duty is paid within such period, there would be no interest liability. If even after completion of three months from introduction of the provision, the duty remained unpaid, the liability to pay interest would commence from such date. So, if we accept the contention of petitioner, the case of the petitioner would fall neither in the main body of section 11AA since in his submission the interest liability would not apply to past cases, nor would be covered under the proviso since in his case, the determination under subsection(2) of section 11A took place after the introduction of section 11AA. Surely, the legislature cannot be attributed the intention to bring about such an incongruent result. This in our opinion would be a strong indication that by necessary implication section 11AA was meant to apply to all cases where the duty remained unpaid after introduction of section 11AA to the statute. In cases where whether the liability to pay the duty arose before or after the introduction of section 11AA but determination took place after the said date, the liability to pay interest would arise under the main body of the section. In cases where the liability as well as determination both took place before the introduction of section 11AA, such cases would be covered under the proviso and liability to pay interest would commence after the end of three months from the date of introduction of section 11AA to the Act. Significantly, in neither case, the interest liability would be for a period prior to introduction of section 11AA. This provision therefore has retroactive applicability. Effect of the words Subject to the provisions contained in Section 11AB inserted in section 11AA - Held that - by providing that section 11AA would be subject to section 11AB, the legislature made it amply clear that those cases of unpaid duty by the reason of fraud, willful misstatement, etc. would be covered by section 11AB only and in a case which is covered by section 11AB, section 11AA would yield to the said provision. The contention therefore, that for applying section 11AA, all conditions provided in section 11AB must be satisfied, is devoid of any merits. The absurd results this contention would lead are plain to see. If for application of section 11AA, all the conditions of section 11AB are to be satisfied, section 11AA would have no independent existence and no purpose of enactment. Surely, the legislature cannot be seen to have framed two different provisions but both covering only one situation. - Decided against the appellant

Issues Involved:
1. Applicability of Section 11AA of the Central Excise Act, 1944.
2. Retrospective effect of Section 11AA.
3. Interpretation of Section 11AA in conjunction with Section 11AB.
4. Validity and applicability of CBEC Circular dated 26.8.2002.

Issue-wise Detailed Analysis:

1. Applicability of Section 11AA of the Central Excise Act, 1944:
The petitioner challenged the imposition of interest on delayed payment of excise duty under Section 11AA of the Act. The central issue was whether Section 11AA applied to duty liabilities arising before its introduction on 26.5.1995. The Tribunal had remitted the matter back for re-quantification of interest, and the Commissioner held that the petitioner was liable to pay interest under Section 11AA. The petitioner argued that Section 11AA did not apply retrospectively and should only cover duties arising after its enactment.

2. Retrospective Effect of Section 11AA:
The petitioner contended that the liability to pay interest is substantive and can only arise prospectively. The court examined the proviso to Section 11AA, which indicated that the section applied even to cases where the duty determination occurred before its introduction, provided the duty remained unpaid three months after the enactment. The court concluded that Section 11AA had a retroactive effect, covering all cases where duty remained unpaid after its introduction, regardless of when the liability arose or was determined.

3. Interpretation of Section 11AA in Conjunction with Section 11AB:
Section 11AB, introduced later, dealt with interest on duties unpaid due to fraud, collusion, etc. The phrase "Subject to the provisions contained in Section 11AB" was added to Section 11AA to clarify that Section 11AA would yield to Section 11AB in cases involving fraud or collusion. The court held that Section 11AA covered all unpaid duties except those specifically addressed by Section 11AB. The petitioner’s argument that conditions of Section 11AB must be satisfied for Section 11AA to apply was rejected as it would render Section 11AA redundant.

4. Validity and Applicability of CBEC Circular dated 26.8.2002:
The petitioner argued that the CBEC circular, which clarified that Section 11AB applied prospectively, should also apply to Section 11AA. The court noted that the circular specifically addressed Section 11AB and its clarificatory provision, which was not present in Section 11AA. Therefore, the circular could not be applied to Section 11AA. The court emphasized that Section 11AA had its own distinct provisions and retroactive applicability.

Conclusion:
The court dismissed the petition, upholding the Commissioner’s order that the petitioner was liable to pay interest under Section 11AA for the unpaid duty, even if the liability arose before the section's introduction. The court clarified the retrospective application of Section 11AA and its relationship with Section 11AB, ensuring that the legislative intent and statutory provisions were correctly interpreted and applied.

← Previous Next →