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TMI Blog2016 (9) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... eable. Once in terms of the order passed by the adjudicating authority after remand by the Tribunal, there is no delay in deposit of duty by the respondent in view of Section 11AA of the Act, the demand of interest is not justifiable. - Decided against the Revenue - Central Excise Appeal No. 10 of 2016 (O&M) - - - Dated:- 27-9-2016 - MR. RAJESH BINDAL AND MR. DARSHAN SINGH, JJ. For The Appellant : Mr. Saurabh Goel, Advocate For The Respondent : Mr. R. Krishnan, Advocate Rajesh Bindal J. 1. The revenue is in appeal raising the following substantial questions of law arising out of the order dated 13.7.2015, passed by the Customs, Central Excise and Service Tax Appellate Tribunal, New Delhi (for short, 'the Tribunal') in Appeal No. 1150/2008: (i) Whether the Hon'ble Tribunal has committed an error while not accepting the contention of revenue that the relevant date for calculation of interest would be the date on which an amount of duty is first determined to be payable as per the Explanation 1 to Section 11AA of the Central Excise Act, 1944, as existing during the relevant period ? (ii) Whether reduction in the amount of duty, whether made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination. In the case in hand, the levy of duty as such was not disputed by the respondent. The matter was remanded back only for some calculation purposes. In terms of the provisions of Section 11AA of the Central Excise Act, 1944 (for short, 'the Act'), the interest is leviable from the date demand was raised originally and not from a subsequent date. Period of three months is provided therefrom. In the case in hand, the fact that duty was payable is not even disputed by the respondent, as the same was paid before even the cases were decided after remand. 4. On the other hand, learned counsel for the respondent submitted that no substantial question of law arises in the present appeal, as Section 11AA of the Act provides for three months' time to pay the amount of demand raised. In the case in hand, there was no delay in payment of the amount after the demand was raised after the remanded cases were decided. There is no justification for raising demand of interest. Explanation 1 to Section 11AA of the Act is not applicable in the present case as the duty was not finally determined by the Tribunal. Remand was made by the Tribunal with a direction to determine the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the respondent fairly did not dispute the fact that in view of the judgment of Hon'ble the Supreme Court in Gujarat Narmada Valley Fertilizers Co.'s case (supra), the duty was payable, however, there being other errors in the orders passed by the adjudicating authority, the Tribunal remanded the matter back to the adjudicating authority with a direction to determine the amount of duty payable after affording reasonable opportunity of being heard to the respondent. Thereafter, the duty was re-calculated. In the process, the adjudicating authority had to get an enquiry made through the Assistant Commissioner, who submitted its report and it was only on the basis thereof that amount of duty was finally determined at ₹ 90,03,543/- and ₹ 2,31,12,248/- against ₹ 97,57,049.63 and ₹ 2,38,50,008/-, respectively. Thereafter, vide order dated 31.3.2008, the adjudicating authority directed the respondent to pay interest on the amount of duty from the dates the orders were passed in the first round of litigation till the amount was paid. The order was set aside by the Tribunal while relying upon its earlier order passed in Aeon's Construction Products Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter. Explanation 1 and 2 thereof will not be applicable in the present case as in the case in hand the duty determined has not been reduced or increased by the appellate authority. Rather, it is a case where the Tribunal finding merit in the contention raised by the respondent remanded the matter back to the adjudicating authority for fresh determination of the amount of duty payable, which necessarily means that the impugned order had lost its significance and it is only the order passed after remand, which would be applicable and enforceable. Once in terms of the order passed by the adjudicating authority after remand by the Tribunal, there is no delay in deposit of duty by the respondent in view of Section 11AA of the Act, the demand of interest is not justifiable. 9. Similar view was expressed by Bombay High Court in Blue Star Limited's case (supra). Earlier orders passed by the Tribunal on the issue were also referred to, including in the case of Aeon's Construction Products Ltd. (supra). Relevant paras thereof are extracted below: 17. Section 11AA has two explanations. By virtue of the first explanation, if duty payable is reduced, then the date of determi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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