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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 ..... f interest under Section 11AB inapplicable prior to 11.05.01. It is his submission that provisions of Section 11AB has no application whatsoever for the period prior to 11.05.01. To supplement these arguments ld. counsel reads the provisions of Section 11AB as it stood prior to and after 11.05.01. He would also submit that consistent judicial view of the various Benches of Tribunal including the Larger Bench has held that prior to 11.05.01, provisions of Section 11AB of the Central Excise Act, 1944 cannot be made applicable for recovery of interest. He would refer mainly to the decision of the Larger Bench in the case of Ramkumar Mills Pvt. Ltd. - 2005 (183) ELT 356 (Tri. - LB ) . He would also submit that a series of orders were passed by this Tribunal following the said view . It is his submission that the amendment to Section 11AB w.e.f . 11.05.01, needs to read as retrospective nature, however, the same did have a clear 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to evade payment of duty, the person liable to pay duty as determined under sub-section (2) of section 11A shall, in addition to the duty be liable to pay interest [at such rate not below eighteen 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 day of the month succeeding the month in which the duty ought to have been paid under this Act or the rules made thereunder or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2) of section 11A , till the date of payment of such duty. (2) For the removal of doubts, it is hereby declared that the provisions of sub-section (1) shall not apply to cases where the duty became payable before the dale on which the Finance ( No.2 ) Bill, 1996 receives the assent of the President. Explanation 1. - Where the duly 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the court, the interest shall be payable on such increased or further increased amount of duty.] 6. The main plank of the argument of ld. counsel for the assessee is that sub-section 2 of Section 11AB which was brought into the Statute needs to be read as these provisions shall not apply to cases where duty has become payable or ought to have paid before 11.05.2001 when the Finance Bill 2001 was given assent to by the President. In short it is the submission that provisions of sub-section 2 of Section 11AB has done away with the provisions of Section 11AB as it stood prior to 11.05.01 in so far as the cases wherein the demand of the duty has been confirmed in accordance with the Proviso to Section 11A of the Central Excise Act, 1944. That is to say that when the demand of the duty is confirmed by invoking extended period and by alleging suppression, mis -statement and collusion and fraud with intend to evade payment of duty, no interest is liable to be paid by an assessee after the enactment of the proviso to sub-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 reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal was admitted on 4-5-2007 and following substantial questions of law were formulated by the Court at the time of admission of the appeal :- A. " Whether penalty was liable to be imposed on the assessee in case where part amount of duty had been deposited by the assessee before issue of show-cause notice ? B. Whether it was mandatory to impose penalty equal to amount of duty alleged to have been evaded, or discretion to impose less penalty or no penalty was vested in the authorities under Section 11AC of the Act ? " 9. Hon'ble High Court of Gujarat after considering all the submissions made by the ld. counsel and considering provisions of Section 11AB prior to 11.05.01 and post 11.05.01, laid down a ratio at paragraph No.18 which we reproduce. "18. So far as the appeal filed by the revenue is concerned, the Tribunal has deleted the interest only on the ground that the demand relates to the period of 1997 to 2000 and on that count, it was held that no interest is leviable in respect of demand prior to 11-5-2001. It is, however, contended before us that while taking the said view, the Tribunal has only considered the provisions of sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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