9911796707
TMI Blog2009 (12) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal Authority while allowing the refund application. The Asst. Commissioner, Kanpur by its order dated 4th June, 2004, while allowing the refund of Rs. 1,05,73,237/-, had appropriated sum of Rs. 42,00,801.35 in terms of proviso to section 11AA of the Central Excise Act, 1944 on account of Central Excise Duty confirmed by Order-in-Original No. 3/COLLR/DEM/93, dated 22-3-93 and which was upheld by the Hon ble Supreme Court. 2. Facts, in brief, are that the duty liability on account of clearance of pan masala Gutkha manufactured by the respondents was assessed and confirmed by the Adjudicating Authority under its order dated 22nd March, 1993. Being aggrieved, the respondent carried the matter in appeal before this Tribunal, which was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and was accordingly, scrutinized and after hearing parties, the claim for Rs. 1,05,73,237/- was allowed. However, at the same time considering the fact that the respondent had not paid the duty, which was liable to be paid in terms of the order of the Original Authority dated 22nd March, 1993, confirmed by the Apex Court in its order dated 28th November, 2002, certain amount therefrom was appropriated including the amount of Rs. 42,00,801.35 being the interest amount payable on the delayed payment of duty. The order in this regard was passed by the Asstt. Commissioner dated 3rd June, 2004. Being aggrieved, the matter was carried in appeal before the Commissioner (Appeals) by the respondent, which came to be allowed under the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that Explanation 2 to Section 11AA rather than lending any support to any contention canvassed by the appellants states that unless there is determination as such, there can be no liability to pay the interest. In this case determination having been done after the Apex Court decision dated 28th November, 2002, question of payment of interest prior to that cannot arise. It is also sought to be contended that there was no demand for interest and, therefore, there was no obligation to pay interest. 5. It is settled law that an appeal is a continuation of the original proceedings. As rightly submitted by the ld. Advocate for the respondents, the order of the Commissioner, that is, the Original authority had merged in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of the order of the original authority as the Supreme Court by order dated 28th Nov., 2002 has confirmed the order of the Original Authority dated 22nd March, 1993. 6. Section 11AA of the said Act deals with the subject of interest on delayed payment of duty. Sub-section (1) thereof provides that subject to the provisions contained in Section 11AB where a person chargeable with duty determined under sub-section (2) of Section 11A fails to pay such duty within three months from the date of such determination, he shall be liable to pay in addition to the duty, interest at such rate not below 10% and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government by Notification in the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee cannot be disputed. Explanation 2 to Section 11AA provides that where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be, the Court, the date of such determination shall be, (a) for the amount of duty first determined to be payable, the date on which the duty so determined, (b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable, and (c) for the amount of further increase of duty, the date of order on which the duty is so further increased. The explanation merely clarifies that in case of variation of the duty amount, the interest would be calc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
