9911796707
TMI Blog2009 (7) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... examined the records and heard both sides. 2. For deciding this case, it is necessary to have a look at its background. The appellant-company has two manufacturing units, viz. plant I and plant II. The goods manufactured in plant II are captiyely consumed in plant I. In the year 2001, in respect of both the plants, the appellant-company submitted an application for single registration, which was rejected by the Commissioner, whose order was taken in appeal to this Tribunal and the Tribunal set aside the Commissioner's order. The appeal subsequently filed by the department against the Tribunal's decision was dismissed by the Hon'ble High Court as per judgment dated 30-8-2007 in Central Excise Appeal No. 249 of 2006. Meanwhile, in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant II could claim exemption under Notification 67/95-C.E., from payment of duty on the goods in question which were manufactured in plant II and captively consumed in plant I within the same factory with single registration. In other words, plant II was not liable to pay the duty which was paid on 6-11-2004 and consequently, there can be no demand of interest on duty under Section 11B nor any levy of penalty under Section 11AC. In this context, the counsel refers to miscellaneous application No. E/1532/09 wherein the appellant prays for incorporating additional grounds in the memo of appeal. It is submitted that such additional grounds have to be raised in the present appeal with reference to Notification 67/95-C.E., The learned SDR has o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (221) E.L.T. 295 (Tri.-Chennai), Guala Closure (India) Pvt. Ltd. v. CCE, Daman, 2008 (228) E.L.T. 39 (Tri.-Ahmd.) and Jai Raj Ispat Ltd. v. CCE, Hyderabad, 2007 (217) E.L.T. 272 (Tri.-Bang.). In these cases, revenue-neutral situations were found and penalties under Section 11AC were vacated. Reliance has also been placed on Tenneco RC India Pvt. Ltd. v. CCE, Chennai, 2009 (235) E.L.T. 105 (Tri-Chennai), wherein a demand of duty was set aside on the ground of revenue-neutrality. On the other hand, learned SDR has claimed support from the Supreme Court's judgments in Punjab Tractors Ltd. v. CCE, Chandigarh, 2005 (181) E.L.T. 380 (S.C.) and The Chairman, SEBI v. Shriram Mutual Fund & Another, 2006-(5)-SCC-361, in support of his submission t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions dated 13-2-2003 as decided by the Commissioner vide Order No. 11/KKS/2003-2004 dated 30-9-2003 and therefore imposition of penalty is also justified." This finding of the lower appellate authority is beyond the scope of the show-cause notice. Nevertheless, there is no appeal by the department, nor is there any plea by the appellant that the decision of the lower appellate authority on the penalty-related issue is beyond the scope of the show-cause notice. In this scenario, I am of the considered view that the penalty-related issue should be remanded to the lower appellate authority. 6. As regards interest on duty under Section 11AB of the Act, I have found a valid point in the reliance placed by the learned SDR on para 10 of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of duty", under the scheme of the four sections (11A, 11AA, 11AB & 11AC) interest is leviable on delayed or deferred payment of duty for whatever reasons." In the instant case, while the demand notice was pending adjudication, the assessee voluntarily determined the amount of duty on the basis of CAS-4 and paid up under sub-section (2B) of Section 11A of the Act. The subsequent order off adjudication was accepted by them also. Therefore, the ruling of the Hon'ble Supreme Court as contained in Para 10 of its judgment in SKF India Ltd. case is squarely applicable to the present case and accordingly, I hold that the demand of interest on duty under Section 11AB of the Central Excise Act is liable to be honoured by the appellant. 7. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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