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TMI Blog2009 (4) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... terials attached by the Department on 19-6-06. Learned Advocate for the appellants has sought to rely upon the decision of the Apex Court in the matter of Income Tax Officer v. M.K. Mohammed Kunhi reported in 1969 (56) AIR 430 (S.C.) as in J.K. Synthetics Ltd. v. C.C.E. reported in 1996 (86) E.L.T. 472 (S.C.) and other decision in ITC Limited and another v. Union of India and others reported in 1983 (12) E.L.T. 1 (Del.) and also of the M.P. High Court in the case of C.C.E., Bhopal v. Tirupati Steel Industries reported in 2005 (182) E.L.T. 149 (M.P.). 2. It is the contention on behalf of the appellant that original show cause notice related to the demand of interest under Section 11AB and there was no demand of interest under Section 11AA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precluded from demanding interest under Section 11AA. He further submitted that this Tribunal under order dated 5-2-2007 in Excise Stay Application No. 2991 of 2006 has already concluded about the liability to pay interest during the pendency of the appeal and it is not open to the appellant to reopen the issue by way of miscellaneous application. 4. The points which are sought to be canvassed on behalf of the appellants go to the merits of the case and therefore, it would be premature for the Tribunal to decide those points finally. 5. Besides the issue relating to liability to pay interest in terms of impugned order during the pendency also stands concluded under the oruer dated 5.2.2007 in Excise Stay Application No. 2991/06. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above order would disclose that under the earlier order dated 28-12-2006 whereby the appellant had sought stay in relation to the penalty imposed , the relief in that regard was rejected to the appellant. The appellant thereafter did not deposit the amount of penalty and hence moved another application before this Tribunal. While dealing with such application, the Tribunal observed that since the appellant had failed to deposit the amount of penalty or interest, it would be open for the revenue to recover the amount. In other words, in the stay order, the Tribunal not only referred to the amount of penalty but also to the amount of interest. The appellant have not challenged the said order in relation to the liability to pay interest durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its order or to prevent abuse of its process or most importantly, to secure the ends of justice. 9. The Delhi High Court in ITC Ltd. has held that apart from the proviso to Section 35F, the appellate authority has inherent power of granting interim relief in the exercise of its appellate jurisdiction. The said observation was made while relying upon the decision of the Apex Court in Mohd. Kunni vs. UOI. 10. The above decisions and rulings undoubtedly disclose that in a given case this Tribunal is fully empowered to pass such order as it may find necessary to secure the ends of justice. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to the decision of the Apex Court in Commissioner of Trade Tax, Lucknow v. Kanhai Ram Thekedar (supra). The Apex Court after taking into consideration the provisions of Section 8 of U.P. Sales Tax Act. 1948 and various earlier decisions of the Apex Court, held as under : 17. Thus, we are of the opinion that the High Court was not justified for deleting the interest levied by the authorities on the ground that no notice was served. In this view, the impugned judgment would normally be unsustainable. However, as already noticed, the respondent-assessee has specifically urged that the subsequent proceedings to the assessment is barred by limitation and that even though the order was passed on 6-6-1986 imposing tax liability etc., the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee-respondent but is at liberty to recover the amount of interest demanded from the Assessing Officer concerned who have not taken steps for four years. 14. At this stage, the above ruling clearly answers the point sought to be raised by the appellant. Mere failure to mention the correct procedure of law regarding the liability to pay interest would not be fatal. What is relevant to be seen is whether the factual foundation necessary to claim interest in terms of statutory powers was laid down or not in the notice. Even reference to incorrect provision of law about the liability of interest would not enable the.assessee from evading such liability. The Apex Court has clearly ruled that merely because the authorities had sought to levy in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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