9911796707
TMI Blog2007 (8) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... o filed written synopsis at the time of personal hearing and the same has also been considered. 3. The relevant facts, in brief, are as follows :- (a) The appellant company has units in different places like Vadodara, Kosamba, and Petrofils. From their Vadodara Unit, they have cleared' goods like Caprolactum and Sulphuric acid during the period from April to September, 2004 on payment of duty to their other units. For the purpose of payment of duly at the time of clearance, they have adopted the assessable value by adding 10% profit margin which was estimated on the basis of the previous year data. (b) On 20-10-2004, on being pointed out by the audit party, the differential duty amounting about Rs. 75 lakhs has been paid which was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the appellant as a company is concerned; since the duty amount paid by Vadodara unit, i.e. the principal amount is in effect not going to the Government, the interest which is only an appendage to the principal is not chargeable. 4.3 Since the duty has been paid after receipt of the CAS-4 certificate and on being pointed out by the audit parties, interest under Section 11AB is not attracted. The show cause notice for recovery of interest relating to April- September, 2004 issued in March, 2006 is also time barred. Since demand of duty is time barred, the demand of interest also should be treated as time barred. He also relied on the decisions in the case of In Re : Presidential Election - AIR 1974 SC 1682, M/s. Star India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, in writing giving reasons for payment of duty on provisional basis and the Asst. Commissioner of Central Excise or the Dy. Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him." 6.3 The Commissioner (Appeals) findings regarding applicability of interest are reproduced below: "The appellants have also contended that interest is payable only when a Central Excise officer determines central excise duty payable under sub-section (2) of Section 11A of the Central Excise Act and that as in this case, the duty had been paid by them on their own accord before issue of show cause notice, interest was not payable. The above pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the date of payment of such duty. (Emphasis supplied) On a simple reading of above provisions, it is quite clear that interest becomes payable if there is short-levy/short-payment of duty or erroneous refund, irrespective of the fact whether the duty short-paid/short-levied etc. is determined by the Central Excise Officer under sub-section (2) of Section 11A of the Central Excise Act, or it is paid by the assessee on his own volition under sub-section 2B of Section 11A ibid before issue of show cause notice. That the above interpretation is the correct interpretation is also supported by Explanation 2 to Section 11A(2B) of the Act which provides as follows :- Section 11A(2B)……….. Explanation 2. - For the removal of doubts, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een levied or paid or has been short-levied or short-paid or erroneously refunded. We do not agree with the view that the demand of interest is quasi punishment as such an observation by the Hon'ble Supreme Court was in the context of case where the interest was sought to be demanded retrospectively without the authority of law. 9. In this case the duty was payable at the time of removal of the goods. The appellant who was free to have opted for provisional assessment on the ground that value was not firmly ascertainable at the time of clearance and they have not done so. The officers have determined the duty after finding the omission on the part of the appellant. The relevant date cannot be linked to the date of receipt of CAS certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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