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TMI Blog2011 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant stating that they have contravened the provisions of Rule 57F(3), 57AB(b) of erstwhile Central Excise Rules, 1944, Rule 3(4) of CENVAT Credit Rules, 2001 read with Sections 3 and 4 of the Central Excise Act, 1944 and Rule 9(3A) of the Central Excise Act, 1944 for not determining the appropriate duty payable at the time of removal of goods, also Rule 49 and Rule 52 read with Rule 52A of the erstwhile Central Excise Rules, 1944 and Rule 3(4) of the CENVAT Credit Rules, 2001 for not paying the duty as prescribed and for not preparing the invoice at the time of removal of the goods. Accordingly, the notice proposed as to why penalty should not be imposed on the appellant under Rule 173Q of the Central Excise Rules, 1944 read with Rule 25 of the Central Excise Rules, 2001 and Section 11AC of the Central Excise Act, 1944 and also interest at appropriate rate for not paying the duty at the time of removal should not be recovered as per Section 11AB of the Central Excise Act, 1944. 2.3. The case was adjudicated by the jurisdictional Dy. Commissioner who vide order dated 23/12/2005 confirmed the duty demand of Rs. 1,53,394/- under Section 11A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and the penalty on the ground that the amount involved had already been paid before issue of show cause notice. As neither the quantum of credit involved, as reversed by the appellants themselves, was in dispute, nor the appellant had filed any refund claim in respect of the amount reversed by them, the same amount was determined as payable by the adjudicating authority. In this factual position the confirmation of the demand was correct and legal and has to be upheld." 2.5. Against the said order the appellant preferred an appeal before this Tribunal and this Tribunal vide order dated 29/05/2009 upheld the order of the lower appellate authority. Against the said order the appellant preferred an appeal before the Hon'ble High Court of Bombay and the Hon'ble High Court has set aside the order of this Tribunal. The Hon'ble High Court made the following observations while remanding the case back to this Tribunal which are reproduced below: "4. The following ground was urged by the assessee in a reply dated 18 July 2005 to the notice to show cause: "(g) Without prejudice to the above, we respectfully submit that the Notice has erred in alleging that there was no intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued to them vide notice dated 18/10/2004 there was no demand of duty under Section 11A of the Central Excise Act, 1944 whereas in the order dated 23/12/2005, the jurisdictional adjudicating authority confirmed the duty demand of Rs. 1,53,394/- under Section 11A and has thus traversed beyond the show cause notice. Further, the demand has been confirmed on the ground of suppression of facts invoking the extended period of time. The learned counsel submits that this Tribunal in the case of Commissioner of Customs, Bangalore vs. Siddaganga Cements (P) Ltd. 2010 (262) ELT 495 had inter alia held that: "it is clear that the penalty provisions of Section 11AC would come into play only after an order is passed under Section 11A(2). An order \under Section 11A(2) can be passed by an authority only after he has issued a show cause notice under Section 11A(1) of the Central Excise Act, 1944." Inasmuch as there is no demand raised in the show cause notice under Section 11A(1), there cannot be any determination in the adjudication order under Section 11A(2) and if any such determination is done, the same is ultra vires. Since the confirmation of demand under Section 11A(2) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11AB cannot be made prior to the date of introduction of the said Section and without determination of duty demand under Section 11A(2) the demand for interest under Section 11AB cannot be sustained. 2.8. The learned AR appearing for the Revenue submits that in the instant case the appellant cleared inputs and capital goods to the Ispat Metallics unit without following any of the procedures i.e., without reversal of the credit taken on the goods, without issue of invoices and without intimating the department about the removal of the goods. They have, therefore, suppressed the material facts from the department. Only when the matter was pointed out by the department they have discharged the duty liability. However, they have not discharged interest liability and, therefore, in view of suppression of facts on the part of the appellants, they are liable to penalty under the provisions of Section 11AC and accordingly, he prays for upholding the demand for interest under Section 11AB and penalty under Section 11AC confirmed by the lower adjudicating and appellate authorities. 3. I have carefully considered the rival submissions. In the show cause notice dated 18/10/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay interest will arise the moment there is a delay in payment of duty and such liability will accrue even when the liability is discharged on assessee's own ascertainment of duty and duty liability can be discharged on such own ascertainment in terms of provisions of Section 11A(2B) of the Central Excise Act which provides that: "where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise officer before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid." 4. Therefore, in the instant case inasmuch as the appellant had discharged the duty liability on his own ascertainment on 05/01/2002, the question of issue of a notice under Section 11A(1) did not arise. Further, Section 11AB which provides for recovery of interest states that interest liability a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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