9911796707
TMI Blog2015 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AC of the Central Excise Act is mandatory and there is no element of discretion. The provisions of Section 11AB of the Central Excise Act came into effect from 28.9.1996 by Finance (No.2) Act, 1996. No doubt that in the year 2001, there is a change in the rate of interest from 11.5.2001 from 10% - 36% to 18% - 36%, but that is irrelevant. Therefore, the plea of the appellant that the adjudicating authority was fully justified is imposing interest is sustainable. Further, there is no escapement for the assessee from payment of interest under Section 11AB of the Act, even though the assessee had paid the duty prior to issuance of show cause notice. Accordingly, the order of the Tribunal deleting the interest levied under Section 11AB of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The 2nd respondent is a manufacturer and service provider of computer peripherals and parts and accessories for computers. A show cause notice was issued, which was agitated and a demand for service tax of ₹ 3,19,863/= in addition to imposition of interest under Section 11AB and penalty under Section 11AC of the Act equal to the duty payable under the Central Excise Act and a further penalty of ₹ 30,000/= under Rule 25 of the Central Excise Rules, 2002 was imposed. 3. Aggrieved against the said adjudication order, the assessee preferred appeal to the Commissioner (Appeals), who upheld the demand of duty, but set aside the demand of interest and penalty by following the judgments of the Supreme Court. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been given. 27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff's case (supra) was not correctly decided but Chairman, SEBI's case (Supra) has analysed the legal position in the correct perspectives. The reference is answered.... 6. Similar view was taken by the Supreme Court in Union of India v. Rajasthan Spinning Weaving Mills, 2009 (238) ELT 3 (SC). It is apposite to refer to paragraphs (23) to (25) of the said decision, which read as under: 23. The decision in Dharamendra Textile must, therefore be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is irrelevant. Therefore, the plea of the appellant that the adjudicating authority was fully justified is imposing interest is sustainable. Further, there is no escapement for the assessee from payment of interest under Section 11AB of the Act, even though the assessee had paid the duty prior to issuance of show cause notice. Accordingly, the order of the Tribunal deleting the interest levied under Section 11AB of the Central Excise Act is also liable to be set aside. 8. In the light of the law enunciated in the decisions referred supra, we have no hesitation to hold that interest and penalty are imposable and there is no discretionary power vested with the authorities for waiving the same. This Court, following the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
