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TMI Blog2013 (10) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... on mandated levy of interest on duty not paid, or short paid or erroneously refunded from the first day of the succeeding the month in which the duty ought to have been paid - These provisions of Section 11AB as introduced from 28.09.96, were, however limited to cases of demand arising due to reason of fraud, collusion or any wilful mis -statement or suppression of facts with intent to evade payment of duty - prior to introduction of Section 11AB in the Statute, interest was liable to be paid by introduction of provisions of Section 11AA in the statute which came into effect from 26.05.95, which provided for interest on the demand of the duty which were confirmed under the provisions of sub-section 2 of Section 11AB of the Central Excise Act, 1944 - Noting the lacuna which failed to enable levy of interest in cases wherein there was an element of fraud, collusion or any wilful mis -statement or suppression of facts with intent to evade payment of duty, provisions of Section 11AB was introduced w.e.f . 28.09.96 - On a holistic reading of the amendment w.e.f . 11.05.01, the amendment has enlarged the scope of the coverage of recovery of interest to all cases wherein the demand has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar effect of operation of Section 11AB as if existed prior to 11.05.01. It is his submission that the amended Section 11AB was brought by way of substitution which would indicate that rights and obligations incurred prior to 11.05.01 would be governed by amended Section 11AB . It is also his submission that as a general proposition, the repeal of an enactment/regulation/law shall not affect the continuance of any such amendment made by enactment so repealed, but the scope of Section 6/Section 6A of the General Clauses Act would be relevant in as much as interpreting the words "unless a different intention appears". For this proposition, he would submit that the Hon'ble Supreme Court in the case of Gammon India Ltd. - 2006 (3) SCC 354 and Jain Brothers - AIR 1970 SC 778 would apply. It is his submission that considering the legislative intent, and simultaneous amendment of Section 11AA and Section 11AB would be applicable for mutually exclusive periods, is clear from the enactments itself. He would rely upon the various decisions to supplement his case. 4. Ld. Additional Commissioner ( A.R .) on the other hand would submit that amendment to Section 11AB from 11.05.01 will not rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y determined to be payable is reduced by the Commissioner (Appeals), the appellate tribunal or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the appellate tribunal or, as the case may be, the court, the interest shall be payable on such increased or further increased amount of duty.] Post 11.05.2001 :- Section [ 11AB . Interest on delayed payment of duty. - [(1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay the duty as determined under sub-section (2), or has paid the duty under sub-section ( 2B ), of section 11A , shall, in addition to the duty, be liable to pay interest at such rate not below (ten per cent] and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section 2 of Section 11AB of the Central Excise Act, 1944 after 11.05.01. 7. We do not agree with the contentions marshalled by the ld. counsel for more than one reason. Firstly, the provisions of sub-section 2 of Section 11AB as was brought into statute on 11.05.01 does not indicate the intention propounded by the ld. counsel. The provisions for charging of interest under the Central Excise Act was brought in for the first time from 28.09.96 by introduction of Section 11AB to the Central Excise Act, 1944. The provision mandated levy of interest on duty not paid, or short paid or erroneously refunded from the first day of the succeeding the month in which the duty ought to have been paid. These provisions of Section 11AB as introduced from 28.09.96, were, however limited to cases of demand arising due to reason of fraud, collusion or any wilful mis -statement or suppression of facts with intent to evade payment of duty. It is to be noted that prior to introduction of Section 11AB in the Statute, interest was liable to be paid by introduction of provisions of Section 11AA in the statute which came into effect from 26.05.95, which provided for interest on the demand of the duty wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-5-2001. It is, however, contended before us that while taking the said view, the Tribunal has only considered the provisions of sub-section (2) of Section 11AB brought on the Statute Book by the Act 14 of 2001 with effect from 11-5-2001. Prior to the said provision, Section 11AB was inserted by Section 76 of Finance ( No.2 ) Act of 1996 with effect from 28-9-1996. It appears that the Tribunal relied on the non-applicable provisions, namely, amended Section 11AB . This amended Section 11AB would not apply to the cases where Section 11AB was inserted by Section 76 of Finance ( No.2 ) Act, 1996, effective from 28-9-2006 and demand related to a period subsequent thereto, i.e. between the period from 28-9-1996 and 11-5-2001. Sub-section (2) of Section 11AB specifically states that the provision of Sub-section (1) of Section 11AB shall not apply to cases where the duty had become payable on the date on which Finance Act, 2001 received the assent of the President. It was, therefore, open and permissible to levy interest under Section 11AB for the period subsequent to 28-9-1996 under the unamended provision of Section 11AB of the Act. " 10. We find that the issue as referred to the Lar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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