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TMI Blog2015 (2) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... o recover the amount recovered from customers - Held that:- Initially there was no provision for charging of interest on the amount determined as payable under Section 11D (3). Such a provision was made by inserting Section 11DD w.e.f. 14/5/03. The amount payable under Section 11D is not the same as the duty which has not been levied or paid or has been short paid or which has been erroneously refunded and whose recovery is recovered by Section 11A. The provisions of Section 11AB are applicable only to the duty which has not been levied or has been short levied or short paid or has been erroneously refunded and has been held as recoverable from a person in terms of Sub-Section (2) of Section 11A. We are of the view Section 11AB is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in accordance with provisions of Rule 57CC during the period of dispute i.e. during 1997-1999 period, they were reversing an amount equal to 8% of the sale value of the exempted final products at the time of their clearances. The appellant, however, while paying an amount equal to 8% of the sale value of the exempted final products under the provisions of Rule 57CC of the Central Excise Rules, 1944,were recovering this amount from their customers. The Department was of the view that the amount equal to the 8% of the sale value of the exempted final product being paid by the appellant was in lieu of reversal of the Cenvat credit attributable to the inputs used in the manufacture of exempted final product and, therefore, the same amount bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AB. Since the appellant did not pay this amount, the Assistant Commissioner vide orders dated 18/11/04 and 27/12/04 adjusted the amount of interest from two refund claims payable to the appellant. The appellant filed appeals to Commissioner (Appeals) against the orders-in-original of the Assistant Commissioner adjusting the amount of interest from the refund claims. In course of proceeding of hearing of the appeals before the Commissioner (Appeals), the appellant made a plea that during the period of dispute there was no provision for levy of interest on the amount payable under Section 11D and the provisions in this regard made by introducing Section 11DD w.e.f. 14/5/03 cannot be given retrospective effect and, therefore, in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of this, the impugned order upholding the recovery of interest is not sustainable. 4. Shri M.S. Negi, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it, and pleaded that when the CCE (Appeals) in his order dated 12/05/03 has upheld the Joint Commissioner s order dated 31/08/01 in toto and the appeal filed by the appellant before the Tribunal except for setting aside the penalty, was rejected, the levy of interest cannot be agitated once again and that in view of this, there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. The undisputed facts are that the appellant were using common Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty under Section 11AC. The CCE (Appeals) s order is silent about interest under Section 11AB and it is this order of CCE (Appeals) which was upheld by the Tribunal except for setting aside of penalty. The point of dispute is as to whether the appellant would required to pay interest on this amount under Section 11AB. 7. Section 11D (1) introduced w.e.f. 20th September 1991 provided that notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or any provisions of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the Rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 11A. We are of the view Section 11AB is not applicable to the amount recoverable under Section 11D (3) readwith Section 11D (1) and 11D (2). The provisions of recovery of interest on the amount determined as payable under Section 11D (3) was made only w.e.f. 14/5/03 by inserting Section 11DD and in absence of any specific provision regarding its retrospective application, the same cannot be applied retrospectively. Therefore, no interest under Section 11AB was chargeable on the demand confirmed under Section 11D (3). 8. As regards the Revenue s plea that the Joint Commissioner s order confirming interest under Section 11AB on the amount determined as payable under Section 11D (3) was upheld in toto by the CCE (Appeals), this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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