9911796707
TMI Blog2014 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, hence no interest is payable"? 2. Whether the Ld. CESTAT's present order is valid and legally sustainable when the Show Cause Notice proposes recovery of fraudulently availed credit which was utilized for discharging duty liability? 3. Whether the utilized amount sought for recovery under Rule 9(2) read with Section 11A of Central Excise Act, 1944 is not considered as duty for the purpose of levy of interest? 4. Whether the Hon'ble Supreme Court's decision and the decision of Madras High Court which have been relied upon by the Ld. CESTAT, Eastern Bench, Kolkata are appreciable to the instant case? 5. Whether the interest component as envisaged under 11AA or 11AB of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the parties. 6. Learned counsel for the revenue submits that though six questions have been proposed, there are two questions for consideration- question of minimum penalty and leviability of interest for the period prior to the orders of Hon'ble Supreme Court in the above judgment. 7. With reference to the question of interest, it is submitted that interest liability could not be set aside and the same is to be calculated from the date the amount is due and not from the date of order of the Supreme Court. 8. The Tribunal has held as follows: "............In view of the Hon'ble Supreme Court's judgment and followed by the Bangalore's CEGAT order in the case of M/s. Agni Steels Ltd. & Anr. Vs. CCEx., Calicut rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-payment or short payment of duty, regardless of the conditions expressly mentioned therein for its application. 14. In view of the above, the plea raised on behalf of the Revenue that there is no element of discretion even in absence of conditions mentioned under Section 11AC, cannot be accepted. In the present case, there is no finding or plea that the conditions mentioned in Section 11AC exist or that there is any mens rea on the part of the assessee. Thus, it is a case where there is delay in payment simplicitor for which penalty is leviable, in addition to the interest liability. In such circumstances, levy of minimum penalty cannot be held to be mandatory. Element of discretion is certainly available to be exercised on the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
