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TMI Blog2019 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... B) have not been fulfilled and therefore, the payment cannot be said to be payment under Section 11A(2B). If the payment is not under Section 11A(2B) the demand of interest under Section 11AB as per the explanation (2) to Section 11A(2B) does not apply - The appellant had paid duty without any coercion but had not fulfilled all the conditions laid down under Sec.11A(2B) of Customs Act. Any refund claim needs to be decided on merits as per Section 11B. Refund claim - no SCN issued - Whether the assessee is entitled to refund of the amount paid by them on the ground that no SCN has been issued to them? - Held that:- The first appellate authority has adequately considered the demand for refund on merits and has held against the assessee and we find no reason to interfere with such a reasoned order. Appeal allowed in part. - Appeal No: E/161-162/2008 - A/30138-30139/2019 - Dated:- 29-1-2019 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Shri R. Raghavendra Rao, Advocate for the Appellant. Smt B.V. Siva Naga Kumari, Prl. Commissioner/AR for the Respondent. ORDER Per: P.V. Subba Rao. 1. These two appeals fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red as payment under duress as has been claimed by the appellant. b) Whether the amount paid by the appellant without receiving demand notice under Sec.11A can be considered as payment under Sec.11A(2B) as voluntary payment during the relevant period. c) Whether any interest under Sec.11AB is payable on the amount so paid. d) Whether the assessee is entitled to refund of the amount paid by them on the ground that no show cause notice has been issued to them. 5. As far as the first issue is concerned, the Hon ble High Court in the aforesaid writ petitions observed as follows: We have seen from the record, especially from the letter written by the Petitioner himself stating that after audit objections certain amounts were paid by him towards the department. There is nothing on record to show that the department coerced the petitioner to pay the said amounts. But the learned counsel for the petitioner submits that although there is nothing on record to show that he was coerced to pay the amount, he was persuaded in such a way that he had no option, but to deposit the amount. Had that been so, the petitioner could have come to the Court before depositing of such amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own assessment or on determination by Central Excise Officer before the issue of notice. b. They should inform the Central Excise Officer of such payment in writing. c. It does not cover the cases where there is short payment on account of fraud, collusion, wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules with intent to evade payment of duty. d. The interest is applicable under Sec.11AB also needs to be paid. 8. If these conditions are fulfilled then the Central Excise Officer shall not serve any notice upon the appellant. Evidently in this case, the assessee paid amount as determined by the Central Excise Officer voluntarily and has informed the department. However, they have not paid any interest. The period in question extends beyond the normal period of one year and hence demand could have been issued under Sec.11A without invoking extended period of limitation. Further, they have not paid any interest on the amount paid. Therefore, all conditions of Sec.11A(2B) have not been fulfilled and therefore, the payment cannot be said to be payment under Sec.11A(2B). If the payment is not under Sec.11A(2B) the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11A(2B) is applicable only for demand within normal period of limitation and if assessee had not voluntarily made payment it was not open for department to recover it. In that view, assessee is not liable to pay interest. As the present case is identical to the above cases, we hold that no interest is chargeable from the appellant. Accordingly, Order-in-Appeal No. 04/2008 dated 28.01.2008 in Appeal E/162/2008 is set aside. 10. Thus, we find that the appellant had paid duty without any coercion but had not fulfilled all the conditions laid down under Sec.11A(2B) of Customs Act. Any refund claim needs to be decided on merits as per Sec.11B. The learned Commissioner (Appeals) has discussed the issue on merits and held that payment pertains to four heads viz., Consignment sales, Collection charges, Additional charges and debit note raised for rate difference. 11. He recorded his findings as follows: 5. Coming to the question of eligibility of refund on merits, it is seen that the audit objection broadly pertains to four head i.e., Consignment sales, collection charges, Additional charges (Miscellaneous Receipt other income) and debit note raised for rate difference. In re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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