9911796707
TMI Blog2016 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed a demand of Rs. 1,15,45,576/- against the appellant as interest payable u/s 11 AA of the Central Excise Act, 1944. 2. Dr. S.Chakraborty (Advocate) appearing on behalf of the appellant during hearing, as well as through written submissions, argued that AC in charge of the appellant's unit vide adjudication Orders dt.11.03.1988 and 19.05.1988 decided the classification of appellant's product "Pitch Creosote Mixture" under CETA 2708.11 instead of CETA 2706.00 claimed by the appellant. That duty of Rs. 84,82,950/- was demanded from the appellant under 8 periodical show cause notices for the period September, 1985 to December, 9187. That the entire duty was deposited by the respondent under protest during 25.09.1987 to 22.06.1989. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. He made the Bench go through the relevant show cause notices and adjudication orders. That the findings of the Adjudicating authority that demands were earlier confirmed under Section 11A(2) of the Central Excise Act, 1944 is thus ex-facie incorrect and contrary to the records of the case. He also relied upon the following case laws:- (a) CCE v. Eicher Demm [2010 (252) ELT 519 (HP)] (b) Caprihans India Ltd. v. CCE [2011 (267) ELT 238 (T)] (c) Kitply Industries Ltd. v. CCE [2003 (152) ELT 208 (T-Kol) (ii) That the case law of CCE v. Woodcraft Products Ltd.[2002 (146) ELT 247(SC)] relied upon by Revenue is not applicable to the present facts in view of Apex Court's decision in the case of Sandur Manganese and Iron Ores Ltd. v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth sides and perused the case records. Issue involved in the present proceedings is whether interest under Section 11AA of the Central Excise Act, 1944 can be recovered from the appellant, with respect to a demand on Pitch Creosote Mixture (PCM) for the period 01.03.86 to 31.12.87 paid by the appellant on 04.03.2004, after the issue was partly decided against them as per Apex Court's order reported as CCE, Bolpur v. Steel Authority of India Ltd. [2004 (164) ELT 387(SC)]. 4.1 Section 11AA of the Central Excise Act, 1944 was introduced with effect from 26.05.1995 and is reproduced below:- "Section 11AA. Interest on delayed payment of duty - (1) Subject to the provisions contained in section 11AB, where a person chargeable with duty determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of increased duty, the date of order by which the increased amount of duty is first determined to be payable; (c) for the amount of further increase of duty, the date of order on which the duty is so further increased. (2) The provisions of sub-section (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President." 4.2 One of the arguments of the appellant is that demands in the current proceedings by the show cause notices and earlier confirmed orders were not made under Section 11A(2) of the Central Excise Act, 1944. Therefore, adjudicating authority under Order-in-Original No.7/COMMR/BOL/06 dated 24.04.2006 has wrongly stated that demands we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short payment of duty or erroneous refund of duty after determination of sub-section 2 of Section 11-A. But this section also deals with payment of duty under sub-section (2-B) of Section 11-A which relates to voluntary payment of duty before service of notice under Section 11-A(1). Admittedly, in the present case no notice was issued under Section 11-A till the time when the amount was deposited by the assessee. This notice was issued after three years. 7.In our considered opinion it is the first proviso which applies in the present case. The order, instruction or direction by the board can be issued in any manner. In the present case, the assessee deposited the amount after the respondent informed him that his method of paying excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that assessee in that case gave an undertaking to the Revenue that amounts refunded would be repaid within seven days in the event of Supreme Court decision against that assessee. Further the demands for recovering erroneous refund in that case was issued under Section 11A of the Central Excise Act, 1944. It was under these facts Apex Court held that assessee was bound to restitute the demands of such refund to the Revenue, with interest. In the present appeal before us neither the duty is determined under Section 11A(2) of the Central Excise act, 1944 nor appellant has given any such undertaking. Inspite of that appellant deposited the entire disputed duty decided by Supreme Court within three months from the case was decided by Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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