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TMI Blog2012 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent under Section 11A(2B), as correct, and as held in the Order-in-Original by the Commissioner? [b] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in allowing the appeal filed by the respondent on the grounds of limitation when as per the reading of Section 11A(2B), it can be observed that there is no limitation on voluntary payment of duty by any party on their own or on being pointed out by the Department? [c] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in not confirming the interest, on the duty paid voluntarily, by the respondent as per the provisions of Explanation 2 to Section 11A(2B) of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not supported by any evidence on record. He, however, held that respondent was liable to pay interest on the delayed payment of duty. He recalculated the interest and confirmed interest demand of Rs.41,13,932/- under Section 11AB of the Act. After giving adjustment of Rs.2,43,023/- paid towards education cess, which was not payable during the period in question, he raised the interest demand of Rs.38,70,909/-. He, however, imposed no penalty under Section 11AC of the Act or under Rule 25 of the Central Excise Rules. 5. The assessee approached the Tribunal against the order of the Commissioner. Significantly, the Department did not file any appeal though the Commissioner had dropped the proposal for imposition of penalty. In that view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the respondent and that therefore extended period of limitation was not available for its recovery to the Department, the manufacturer voluntarily paid the entire duty in two installments on 21.2.2005 and 22.9.2005 even before the issuance of notice. It is under these circumstances, the question arises whether interest under Section 11A(2B) could be charged. Section 11A of the Act pertains to recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Relevant portion of Section 11A reads as under:- " 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. -(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efunded, 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: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and the, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of " one year" r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to such unpaid, short paid or erroneously refunded duty, if the manufacturer pays the sum on the basis of his own ascertainment before issuance of notice by the Central Excise Officer, the Officer, on receipt of such information, shall not serve any notice under sub-Section (1) in respect of duty so paid. In other words, upon voluntary payment of duty by the manufacturer, no show cause notice for recovery thereof would be issued to the extent of duty so paid. Explanation-1 to sub-Section (2B) of Section 11A makes it abundantly clear that the provisions contained therein would not apply in cases of unpaid duty on account of fraud, collusion, wilful misstatement or suppression of facts or contravention of statutory provisions with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order in original, to our mind the respondent was not liable to pay even the basic duty. B ut for the respondent voluntarily making payment of such duty short-paid, it was not open for the Department to recover the same under sub-Section (1) of Section 11A of the Act. In absence of any such voluntary payment, recovery of the unpaid duty would not have been possible. In that view of the matter, we do not find the case would fall under sub-Section (2B) of Section 11A of the Act. Sub-Section (2B) of Section 11A of the Act applies in a case where there is voluntary payment of u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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