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TMI Blog2010 (3) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Gurpreet Singh, Advocate, for the Appellant. Shri Vikrant Kackria, Advocate, for the Respondent. [Order per : Ashutosh Mohunta, J.]. - The Revenue has filed this appeal under Section 35G of the Central Excise Act, 1944 (for short 'the Act') challenging the order (Annexure P-3) dated 1-8-2005, passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi, vide which it was held that interest under Section 11AB of the Central Excise Act, 1944 cannot be demanded or charged from the assessee who has paid the duty before issuing of the show cause notice. 2. Briefly the facts of the case are that the respondent M/s. Creative Dying Printing Mills Pvt. Ltd. is engaged in the processing of cotton and Manmade fabrics. Bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice. 4. Despite the fact that the entire duty stood paid by the respondent of their own, the Department called upon the respondent to show cause as to why they should not pay interest on differential duty under Section 11AB of the Act. 5. The respondent replied to the show cause notice and averred that as they have paid the differential duty even before the issuance of the show cause notice, hence, they are not liable to pay any interest. However, the adjudicating authority confirmed the demand against the respondent. An appeal was filed by the assessee which was dismissed by the Commissioner (Appeals). The aforementioned orders were challenged by the respondent before the Tribunal which allowed their appeal and held that int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest is payable on all cases of duty, short paid or not paid, short levied or not levied or erroneously refunded by a reason of fraud, collusion or willful suppression of fact. Learned counsel has submitted that even if there is a genuine error, then also interest would be payable on such amount from the first day of the month succeeding the month in which the duty ought to have been paid. 7. Counsel for the appellant has placed reliance on Commissioner of Central Excise, Pune v. SKF India Ltd. reported as 2009 (239) E.L.T. 385 (S.C.). 8. Learned counsel has further argued that in the present case, the valuation of plant and machinery of the respondent had exceeded Rs. 3 crores which was well within their knowledge and hence they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it was payable. Finding that provisions of section 11A(2) and 11A(2B) were not applicable as the situation occurred in the instant case was quite different, section 11AB(1) was not at all applicable, and therefore, the Assessee was not required to pay interest." 10. Counsel for the respondent has also argued that sub-Section 2B of Section 11A provides that assessee in default may, before the notice is issued under sub-Section 1, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by the Central Excise Officer and therefore, the Tribunal was right in holding that the assessee is not liable to pay any interest. 11. The question whether the assessee is liable to pay interest in case of default or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment 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. " 12. In the aforementioned judgment, the judgment of M/s. Rucha Engineering (supra) was also considered by the Apex Court and it has been held as under :- "14 We are unable to subscribe to the view taken by the High Court. It is to be noted that the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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