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TMI Blog2016 (8) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case are that the appellants are manufacturers of excisable goods falling under Chapter No. 4006.10 of Central Excise Tariff Act, 1985. They filed a refund claim on 28.05.2010 for Rs. 3,38,515/- being the interest paid for the delay in discharging adjudication levies imposed on them. Based on the intelligence that the appellants were evading central excise duty on their product by floating concerns and resorting to clandestine clearance and undervaluation, the department finally seized the documents and after their investigation they came to the conclusion that there was duty evasion of Rs. 15,61,810.87 with respect of clearance made during the period 1984-85 to 09.05.1989. Thereafter a show-cause notice was issued whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability by the Central Excise Officer under sub-section (2) of Section 11A of the said Act. Thereafter the appellant received two letters from the Department dated 29.01.2010 and 02.02.2010 demanding interest of Rs. 2,93,379/- for delayed payment of duty in terms of Section 11AA of the Central Excise Act. The appellant vide their letter dated 08.02.2010 submitted that Section 11AA of the Central Excise Act 1944 was introduced in the statute only w.e.f. 26.05.1995 and the said Section would be applicable only for duty payable clearances made after that date. Thereafter the department vide their letter dated 09.02.2010 demanded Rs. 3,41,556/- as interest which was recalculated under Section 11AA of the Central Excise Act. Thereafter vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay interest under Section 11AB of the Central Excise Act 1944. Aggrieved by the impugned order, the appellant has filed the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the question of law that was there before the department or the Commissioner (Appeals) was whether the original order was right in rejecting the refund claim filed by the appellant on the ground that appellants were liable to pay interest under Section 11AA of the Central Excise Act 1944 and the learned Commissioner (Appeals) in the impugned order decided this question in favour of the appellant. The Commissioner (Appeals) in the impugned order has clearly held that Section 11AA of the Act is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) (iv) Curekraft Chemicals Pvt. Ltd. Vs. CCE, Chennai 2009 (247) ELT 506 (Tri.-Chennai) (v) Essar Steel Ltd. Vs. CC, Ahmedabad 2004 (177) ELT 550 (Tri.-Mumbai) (vi) Tamilnadu Textile Corporn, Ltd. Vs. CCE, Coimbatore 2009 (246) ELT 598 (Tri.-Chennai) (vii) MTR Foods Ltd. Vs. CCE, Bangalore 2011 (22) STR 342 (Tri.-Bang.) (viii) Mcnally Bharat Engg. Co. Ltd. Vs. CCE, Ranchi 2004 (168) ELT 249 (Tri.-Kolkata) (ix) Nandi Sahakari Sakkare Karkhane Niyamit Vs. CCE, Belgaum 2004 (169) ELT 191 (Tri.-Bang.) (x) Godrej Industries Ltd. Vs. CCE, Mumbai 2008 (229) ELT 484 (SC) 4.1. He further submitted that the appellants are not liable to pay interest even under Section 11AB of the Central Excise Act 1944 in view of the Board s Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required to be applied was the law that existed at the time of clearances, unless the law subsequently amended had expressly been given retrospective effect." 4.2. Further the Tribunal in the case of Marcandy Prasad Radhakrishna Prasad P. Ltd. Vs. CCE 1998 (102) ELT 705 (Tri.) has held that recovery of interest would not be applicable to duty evaded during the period prior to coming into force of the said Section. Aggrieved by the Tribunal decision, the department preferred an appeal before the Hon ble Supreme Court and the Hon ble Supreme Court dismissed the appeal filed by the department as reported in 1999 (107) ELT A121 (SC). He also submitted that the demand cannot be made without a proposal in the show-cause notice and in the &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT-MUM (ii) M/s. Ajanta Tubes Ltd. Vs. CCE, Meerut II 2007-TIOL-90-CESTAT-DEL. (iii) The Union of India Vs. Kennametal Widia India Ltd. 2008-TIOL-169-HC-KAR-CX (iv) Eswaran & Sons Engineers Ltd. Vs. CCE, Chennai 2007 (208) E.L.T. 312 (Tri.-Chennai) (v) Prabhat Zarda Factory Ltd. Vs. CCE, Delhi 2002 (144) E.L.T. 347 (Tri.-Del.) (vi) Fine Automotive & Indus. Radiators P. Ltd. Vs. CCE, Chennai 2005 (184) E.L.T. 365 (Tri.-Chennai) 6. After hearing the submission of both the counsels and perusal of the various judgments cited at the bar by both the parties, I am of the considered opinion that the impugned order is not sustainable in law on the ground that interest cannot be demanded from the appellant under Section 11AB which was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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