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TMI Blog2017 (7) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... le to pinpoint the incorporation of these Sections. In absence of any statutory provisions, it is settled that any demand of penalty (11AC) and/or interest (11AB) would be without jurisdiction and authority of law. It is settled that a clear statutory mandate requires for authority to collect and/or raise demand of any tax and penalty and/or interest. In the absence of such provision, any demand in the present case, of penalty/interest is unauthorised, impermissible and unsustainable. The Department itself, therefore, accepted the position of law and even set aside such imposition under Section 11AC by Additional Commissioner by order dated 29.03.2010. In view of above, the order passed by the Assistant Commissioner dated 26.12.2012 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal was correct in holding that the appellant has not agitated this issue and hence, the same cannot be gone into? 2 Heard finally by consent of the parties, therefore, this final judgment. 3 The relevant facts are as under: The Appellant is inter alia, engaged in the manufacture of Embroidered Grey Fabrics falling under Chapter Sub Heading No. 5804.11 of the Central Excise Tariff Act, 1985 (Excise Tariff Act). The Central Excise Officers, Daman, summoned the appellant for production of records. On scrutiny of the records, the central excise department alleged that the appellant had incorrectly classified the product under chapter heading No. 5804.11 as Lace/Motif of Cotton instead of chapter heading No. 5804.19 as Embr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med the entire demand of ADE (T TA) of ₹ 6,23,478/along with interest under Section 11AB and imposed equal penalty amounting to ₹ 6,23,478/under Section 11AC of the Central Excise Act, apart from penalty of ₹ 1,00,000/under erstwhile Rule 173Q of Central Excise Rules, 1994 (The Rules). 6 Being aggrieved, the appellant filed appeal before the Appellate Tribunal. The Appellate Tribunal vide Order dated 21.09.2005 held that the appellant is liable to pay the demand. However, the Appellate Tribunal remanded the matter back to the original authority to redetermine the penalty to be imposed under Section 11AC in light of the decision of the Apex Court in the case of State of Madhya Pradesh vs. M/s. BHEL, 1998 (99) ELT 33 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA) which was levied under the provisions of the ADE (T TA) Act. Consequently, the appellant filed an application seeking refund of predeposit of ₹ 3,12,000/made in compliance of order dated 07.11.2008 passed by the Appellate Tribunal. 10 On 26.12.2012, however, its order the adjudicating authority sanctioned the refund of ₹ 3,12,000/but appropriated the same against interest amounting to ₹ 8,45,446/alleged to be payable by the appellant on AED (T TA) of ₹ 6,23,478/. 11 Being aggrieved, the appellant filed appeal before Commissioner of Central Excise (Appeals), Vapi, on the ground that in absence of statutory provision, no interest can be demanded from the appellant. However, vide order dated 11.04.2013, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, such concurrent findings so given by the authorities need not be disturbed and/or interfered with in the present Appeal. We are not inclined to accept these contentions, even the reasoning given by the learned authorities while confirming the said demand of interest specifically in view of above provision of law and fact. There is no provision to collect such taxes and specifically when there is nothing pointed out nor any reason given by the authorities, how they have charged this interest referring to Section 11AB of the Act. If there is no provision and authority to raise such demand, the rectification application filed or not, in no way confirm the power to collect tax or penalty and/or interest without the provisions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip Private Limited (2015) 1 SCC 1 (5 Judges Bench).] 16 We have noted that the Appellate Tribunal while passing the order though dealt with Section 11AC of Excise Act, referring to Supreme Court judgment in State of M. P. vs. BHEL (supra), set aside the demand of penalty by allowing the Appeal of the Appellant. 17 The Department itself, therefore, accepted the position of law and even set aside such imposition under Section 11AC by Additional Commissioner by order dated 29.03.2010. In view of above, the order passed by the Assistant Commissioner dated 26.12.2012 whereby order to refund the amount in view of above, but directed to appropriate the interest to be paid by the assessee (Appellant) under Section 11 of the Excise Act, is un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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