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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 ..... in original, to our mind the respondent was not liable to pay even the basic duty - If by efflux of time and in absence of availability of extended period of limitation, such show cause notice itself had become time barred, any payment made voluntarily by the manufacturer cannot be viewed as one made under sub-Section (2B) of Section 11A - Appeal is dismissed - Tax Appeal No. 56 of 2011 - - - Dated:- 20-1-2012 - Akil Kureshi and Sonia Gokani, JJ For Appellant: Mr R J Oza JUDGEMENT Per: Akil Kureshi: 1. Draft amendment dated 18.11.2011 is granted. 2. Department is in appeal against the judgment of the Tribunal dated 14.7.2010. Following questions have been framed for our consideration. [a] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in not considering the voluntary payment of duty made by the respondent 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 of the matter, the question of penalty achieved finality. In other words, the findings of the Commissioner that there was no intention on the part of the assessee to evade duty was not questioned by the Department. 6. The Tribunal, by the impugned order allowed the appeal of the respondent manufacturer. The Tribunal was of the opinion that when the Commissioner himself had held that there was no suppression or mis-declaration attributable to the respondent, invocation of the longer period was not justified. The Tribunal was, therefore, of the opinion that provisions of sub-Section (2B) of Section 11A would not apply. 7. Counsel for the Department referring to the statutory provisions applicable submitted that the Tribunal committed a grave error in deleting the interest demand confirmed by the Commissioner. He submitted that the interest was correctly charged under sub-Section (2B) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of this sub-section shall have effect, for the words one year, the words five years were substituted: Explanation- Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. xxx xxx xxx xxx xxx xxx (2B) Where any duty or 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be payable on the amount paid by the person under sub-Section (2B) and also on the amount of short-payment of duty as may be determined by the Central Excise Officer but for the said sub-Section. Thus Explanation only clarifies that despite voluntary payment of duty by a manufacturer the liability to pay interest on such delayed payment of duty is not absolved. It, therefore, provides that the manufacturer shall still pay interest on the voluntarily paid duty to the extent of delay as also shall pay further interest on any excise duty demand confirmed by the Excise Officer, over and above what may have been voluntarily paid. To our mind this Explanation cannot be used in interpreting the ambit of the main body of sub-Section (2) of Section 11A. The Explanation itself is in the nature of a clarification and is thus a clarificatory provision. 10. In essence, what sub-Section (2) of section 11A provides for is for non-issuance of notice by the Central Excise Officer to the extent a manufacturer might have voluntarily paid duty even before issuance of show cause notice. When Explanation-2 provides that said provision would not apply in case of fraud, collusion, wilful misstatement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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