2017 (12) TMI 643 - AT - Central Excise

Benefit of SSI Exemption - Classification of goods - Road Marking Paints - classified under CETA 3210.90 or under CETA 3208.90? - case of appellant is that they are eligible for SSI exemption as prevalent during the impugned period, in which case they claim that there shall be no duty liability since all their clearances will be within the exempted turn over limits - Held that - appellants have accepted the CETA classification of 3208.90 in respect of Road Marking Paints manufactured by them as proposed in the SCNs and confirmed in the orders of the lower authorities. - appellant had opted for availing modvat credit ab initio, in which case, they will not be eligible for full duty exemption but instead will have to discharge duty liability at effective rate of duty less 10% from the beginning. This being so, the contention of the appellant that they are eligible for availing turn over based SSI exemption does not succeed - demand upheld. Demand of interest - Held that - the provision for demand of interest was introduced for the first time by insertion of Section 11AA only w.e.f. 26.5.1995 by Section 73 of the Finance Act, 1995. Subsequent insertion of Section11AB was made w.e.f. 28.9.1996 by Section 76 of the Finance Act, 1996, which too was amended w.e.f. 11.5.2001. Even so, statutory provisions for demand of interest on duty not paid, short paid etc. cannot have retrospective effect. The SCNs based on which the above differential duty has been demanded have been issued well before the aforesaid introduction of Section 11AA / Section11AB, and in consequence they do not incorporate any demand of interest liability on the differential duty demanded - the demand of interest in this case is not supported by the law then in force, for which reason it will not sustain - demand set aside. Appeal allowed in part.

Summary

Issues:
Classification dispute regarding Road Marking Paints and eligibility for SSI exemption. Imposition of interest under Section 11AB of the Central Excise Act, 1944.

Classification Dispute and SSI Exemption Eligibility:
The case involved a dispute over the classification of Road Marking Paints manufactured by the appellant. The department proposed classification under CETA 3208.90, while the appellant classified them under 3210.90. Show cause notices were issued for the differential duty proposed. The original authority confirmed a total demand of Rs. 2,21,932 and demanded interest under Section 11AB. The Commissioner (Appeals) upheld this order. The appellant contended that they were eligible for the SSI exemption due to their turnover being within the exemption limits. However, it was found that the appellant had opted for modvat credit, making them ineligible for full duty exemption. The Tribunal held that the differential duty liability did not require interference, and the appellant was required to pay the remaining amount, if any.

Imposition of Interest under Section 11AB:
The appellant argued that the provisions for interest on delayed duty payment were not in force during the disputed period, and Section 11AA came into effect only from 26.5.1995. The Tribunal referenced a previous case and a circular to establish that interest provisions could not have retrospective effect. The SCNs did not demand interest on the differential duty, and the demand of interest under Section 11AB was found unsupported by the law then in force. Consequently, the Tribunal set aside the portion of the orders confirming the interest demand under Section 11AB. The appeal was partly allowed on these grounds.

This detailed analysis of the judgment highlights the classification dispute, SSI exemption eligibility, and the imposition of interest under Section 11AB, providing a comprehensive understanding of the legal issues involved and the Tribunal's decision.