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TMI Blog2017 (12) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit ab initio, in which case, they will not be eligible for full duty exemption but instead will have to discharge duty liability at "effective rate of duty less 10%" from the beginning. This being so, the contention of the appellant that they are eligible for availing turn over based SSI exemption does not succeed - demand upheld. Demand of interest - Held that: - the provision for demand of interest was introduced for the first time by insertion of Section 11AA only w.e.f. 26.5.1995 by Section 73 of the Finance Act, 1995. Subsequent insertion of Section11AB was made w.e.f. 28.9.1996 by Section 76 of the Finance Act, 1996, which too was amended w.e.f. 11.5.2001. Even so, statutory provisions for demand of interest on duty not paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/91 Rs.37,704.76 2. C.No.IV/9/41/93 dt. 23.6.93 1/93 to 3/93 Rs.56,777.83 3. OC No.327/93 dt. 2.12.93 4/93 to 10/93 Rs.91,376.07 4. OC No.332/94 dt. 03.05.94 11/93 to 4/94 Rs.36,072.55 Total Rs.2,21,931.21 Original authority vide order dt. 31.12.2007 confirmed the total demand of ₹ 2,21,932/- and appropriated a sum of ₹ 1,00,540/- already paid by the appellant. Original authority also demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudication order. (vi) The issue was only relating to classification dispute and eligibility of SSI and there was no allegation of misstatement or suppression of facts. 3. On the other hand, on behalf of Revenue, Ms.S.Hemavathi, Ld. Commissioner (AR) supports the impugned order. She also points out that the assessee had themselves opted to pay effective rate less 10% as provided for in the SSI exemption by availing modvat credit and had paid duty accordingly to the extent of ₹ 11,993.60. This being so, the appellant themselves have opted to avail modvat credit and pay lower rate of duty. In such circumstances, they will not be eligible for turnover-based Nil duty exemption. 4. Heard both sides and have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit. From the facts, it emerges that appellant had opted for availing modvat credit ab initio, in which case, they will not be eligible for full duty exemption but instead will have to discharge duty liability at effective rate of duty less 10% from the beginning. This being so, the contention of the appellant that they are eligible for availing turn over based SSI exemption does not succeed. We also find that the SCNs have worked out the differential duty liability after deducting 10% from effective rate of duty for CETA 3208.90. In the circumstances, we hold that the total differential duty liability of ₹ 2,21,932/- confirmed in the adjudication order and upheld in the impugned order does not require any interference. We note tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised as to whether provisions of Section 11AB of the Central Excise Act, 1944, will apply to past clearances or not. 2. The Board had clarified vide F. No. 354/118/96-TRU, dt. 6-1-97 (Para 3) that it would apply even to past cases where duty u/s. 11A(2) is determined on or after 28-9-96. 3. Further, on the matter being referred to the Solicitor General of India (SG), in his detailed opinion dt. 3-1-2000, he had opined that Section 11AB would apply to all adjudications orders passed on or after 28-9-96 irrespective of the fact whether it relates to clearances made before 28-9-96 or after. A copy of the SG s opinion was sent to all Chief Commissioners vide Board s letter F. No. 387/90/98-JC dt. 27-3-2001. 4. However, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituted w.e.f. 11-5-2001 by the Finance Act, 2001, making it now very clear that Section 11AB will apply only to cases where duty had become payable or ought to have been paid after 11-5-2001. Further, proviso to section 11AB(1), as inserted w.e.f. 11-5-2001, makes it quite clear that duty becomes payable on the basis of instructions or directions of the Board also and not necessarily because of adjudication of a case. 7. Thus, the net effect of the judgment in the case of M.P. Tapes and the amendment made to section 11AB w.e.f. 11-5-2001 is that the said section can be invoked only in respect of clearances affected after 28-9-96, irrespective of the date of passing of the adjudication order. 8. Trade notices may be issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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