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TMI Blog2013 (9) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... at the period of limitation prescribed for demand of duty under Section 11A is normally one year and, in exceptional circumstance of a case falling under the proviso to Section 11A(1) the period of limitation is five years. But that would be applicable only in case of misstatement, fraud, concealment etc., which is not the case here. As such, in the present case, the period of limitation for the demand for duty would be one year. By the same logic, the period of limitation for demand of interest thereon would be one year - Show cause notice issued on 26-4-2005 for the demand of the interest for a period from April 2001 to March 2004 is blatantly time-barred and any order confirming the demand of the interest due under such show cause notice is unsustainable – Decided in favor of Assessee. - E/868/2008 - A/10112/2013-WZB/AHD - Dated:- 17-1-2013 - Shri M.V. Ravindran, J. Shri Willingdon Christian, Advocate, for the Appellant. Shri M. Kutty, AR, for the Respondent. ORDER This appeal is directed against order-in-appeal No. Commr. (A)/70/VDR-I/2008, dated 13-6-2008. 2. The relevant facts that arise for consideration are, appellants are engaged in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of Excisable Goods) Rules, 2001 read with Section 11AB of the Central Excise Act, 1944. 3. Being aggrieved by the order passed by the adjudicating authority in de novo proceedings, assessee preferred an appeal before the first appellate authority, raising various questions of law and disputing the liability to pay the interest. The first appellate authority after following due process of law, did not agree with the contentions raised by the appellant before him. He concurred with the views of the first appellate authority and held that there is no infirmity in the order-in-original and coming to such a conclusion, the appeal was rejected, hence this appeal. 4. Ld. counsel submits that show cause notice dated 26-4-2005 for demand of interest is blatantly time-barred as it was issued after normal period of one year and there is no allegation of any wilful suppression of facts etc. and relies upon the decision of this Tribunal in the case of EMCO Ltd. - 2011 (272) E.L.T. 136 (Tri.) and the judgment of Hon ble High Court of Delhi in the case of Kwality Ice Cream Company Anr. - 2012-TIOL-252-HC-DEL-CX = 2012 (281) E.L.T. 507 (Del.) = 2012 (27) S.T.R. 8 (Del.) and also on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 issued a show cause notice to the appellant for demanding the interest from them. On perusal of the said show cause notice, I find that the said show cause notice did not allege suppression of facts or suppression or mis-statement of facts with intention to evade payment of duty. The said show cause notice which is annexed at page Nos. 56-62 of the appeal memoranda indicates that the appellant had contravened the provisions of Rule 2 of Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods Rules, 2001 and only indicates that this act of non-payment of duty immediately at the time of removal of the duty free procured goods for purposes other than for which it was procured, appears to be an offence of the nature prescribed under Rule 25 of the Central Excise Rules, 2002. This allegation is found specifically at paragraph no. 11 of the show cause notice dated 26-4-2005. This would indicate that the show cause notice which has been issued on 26-4-2005, at the most can be pressed into service for demand of the interest by the Revenue for a period of one year from the date of show cause notice i.e. from 26-4-2004 while the demand of the interest is for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay within a reasonable period. In a similar case, the Hon ble Apex Court in the case of Commissioner v. TVS Whirlpool Ltd. [2000 (119) E.L.T. A177 (S.C.)] held as follows - It is only reasonable that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon. Respectfully following the said decision, we hold that when the normal time limit prescribed is one year from the relevant date, (the date of filing of return) for recovery of the principal amount, (excise duty, in this case), it will be reasonable to adopt the same period for recovery of interest as well. 12. Therefore, in the instant case, we are of the view that the department should have initiated the proceedings for recovery of interest within a period of one year from the date of filing of monthly returns. Since the demand notice is issued only on 7-8-2009, the demand for recovery of interest for the period prior to July, 2008 will be beyond the reasonable period of one year and, therefore, the same is barred by limitation. Only for the period from July, 2008 (for which the return is required to be filed in August, 2009), the demand for interest c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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