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TMI Blog2015 (6) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate case that we refuse to interfere with the order under challenge on this ground. The question of law that we have framed as substantial question of law has already been answered in series of decisions against the Revenue. The Tribunal has rightly placed reliance upon the language of Section 11AB. It has also placed reliance upon coordinate Bench decision in the case of Marcandy Prasad (1998 (3) TMI 316 - CEGAT, CALCUTTA). The Revenue has accepted the fact that the provision and as interpreted in the case of M/s. M.P. Tapes v. Commissioner of Central Excise lays down the correct law. - The provisions of Section 11AB, inserted w.e.f. 28th September, 1996 are in the nature of penal interest and would apply only to those cases where cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty liability was not discharged. On investigation carried out by the Revenue/Department, it was revealed that the Assessee actually manufactured and cleared dutiable goods valued at ₹ 4,04,32,816/-. A show cause notice was issued on 31st January, 2000 demanding duty of ₹ 15,36,350/-. The proviso to Section 11AC was invoked for imposition of penalty and for recovery of interest, Section 11AB of the Central Excise Act, 1944 was applied. 4. From the record, it reveals that the order passed by the Commissioner on the show cause notice dated 8th November, 2000 was accepted by the Assessee. The operative direction No. 2 in that order was that the Assessee shall pay interest on the confirmed demanded amount of ₹ 15,36,350/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been erroneously collected. However, that assumption of the Assessee is incorrect because the provision enables imposition of interest in orders of adjudication made after 28th September, 1996. Therefore, the legal provision was rightly invoked. The claim for refund was rejected. 6. The Assessee carried the matter to the Appellate Authority, namely, the Commissioner of Central Excise (Appeals), Mumbai. The said Commissioner heard both sides and passed an order on 11th March, 2002. He held that the Assessee could not have claimed refund at all. The Assessee accepted the original order dated 8th November, 2000 confirming the duty demanded and recovering interest and imposing penalty. That having not been challenged, the claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any paid on such duty were substituted by Act 18 of 2008 w.e.f. 10th May, 2008. Therefore, the Assessee could not have filed any application for refund. The Assessee had not challenged the order-in-original dated 8th November, 2000 but accepted it. Hence, all the more the application made was untenable and should have been dismissed on this ground alone. 9. Mr. Khemka, on the other hand, would submit that the application for refund was scrutinized and the ground for rejecting it is not the one now canvassed before us. The Revenue never thought that the application was not maintainable or untenable. The ground now put forward was never raised during the course of the proceedings and right up to the Tribunal. Now it should not be open for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that it was not maintainable. The Revenue s pleas before us are in the nature of afterthought. We do not think that any time this objection was raised by the Revenue. We are therefore of the opinion that any larger question or controversy need not be gone into. Particularly, this Court has not admitted the Appeal on the question of law now raised by the Revenue. However, the Appeal has been admitted on the substantial question of law formulated on 20th October, 2005. The order was passed after noting the contentions of the Revenue and perusing the memo of Appeal. In these circumstances, by clarifying that the abovenoted question raised during the course of arguments can be examined in an appropriate case that we refuse to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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