9911796707
TMI Blog2024 (6) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of interest when the differential duty is paid. In case of SERAI KELLA GLASS WORKS PVT. LTD. VERSUS COLLECTOR OF C. EXCISE, PATNA [ 1997 (4) TMI 74 - SUPREME COURT] , which has been relied upon by the lower authority, in fact supports the case of the Appellant. It has been held therein that after final assessment, there is no need to give any further notice under Section 11A for recovery of differential duty amount. Precisely for this reason, the Commissioner (Appeals) has held that the OIO passed is not proper. Necessity to issue SCN - HELD THAT:- There was no necessity to issue any Show Cause Notice under Section 11A as has been rightly held by the Commissioner (Appeals). It is also noted that no further Appeal has been filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,36,379/- on 23/10/2009. Show Cause Notice was issued on 24/03/2009 in terms of Section 11A seeking to recover Rs. 12,40,886/- and appropriated the already paid Excise Duty of Rs. 6,04,507/- and seeking to charge interest in terms of Section 11AA of the CEA, 1944. After due process, the Adjudicating Authority confirmed the demand of Rs.12,40,886/- and appropriate Rs. 6,04,507/- and directed the Appellant to pay the interest at appropriate rate under Section 11AA and Section 11AB of CEA, 1944. Being aggrieved, the Appellants have filed the Appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned OIA has held that as the amounts have been paid by the Appellant on account of finalization of assessment under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted any delaying tactics in finalizing the assessment. Therefore, even if the interest provisions have come into effect from 11/5/2001, the same should not be applied in this case. Further he also points out that the Commissioner (Appeals) vide his OIA dated 18/02/2013 has held that when the differential duty has already been paid in terms of Rule 9B(5), the issue of Show Cause Notice under Section 11A and OIO passed on 27/11/2009 are not proper and accordingly and he has set aside the OIO. The Department has not filed any further Appeal against the OIA passed on 18/02/2013. Therefore, the issue has reached finality, so far as to whether Section 11A, Section 11AA and Section 11AB provisions are applicable to the present case or not. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11A for recovery of differential duty amount. Precisely for this reason, the Commissioner (Appeals) has held that the OIO passed is not proper. 8. On going through the case law of Kitply Industries Ltd. vs. Commr. of Central Exise, Shillong, cited supra, the Tribunal has held as under:- However, as pointed out by the ld. Counsel for the appellants, interest on delayed payment of duty is chargeable only under the provisions of Section 11AA of the Central Excise Act, 1944 which provides for levy of interest if a person fails to pay duty determined under sub-section (2) of Section 11A of the Central Excise Act, 1944. It is not the case of the Revenue that the duty due from the Appellants in the present matter was determined under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in terms of Section 11AB does not arise as held by the Tribunal judgments cited above . Respectively following the same, the impugned order is set aside and the appeal is allowed with consequential relief if any. [Emphasis supplied] 10. We find that in this case, there was no necessity to issue any Show Cause Notice under Section 11A as has been rightly held by the Commissioner (Appeals). It is also noted that no further Appeal has been filed by the Revenue against this OIA. Therefore, the issue has reached finality. In such a case, the Commissioner (Appeals) is in error in confirming the interest alone under Section 11AA/11AB when the provisions have come into effect from 11/5/2001 and the provisional Assessment was finalized in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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