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TMI Blog2002 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... y which he has rejected the appeal of the appellants and upheld the order-in-original passed by the Assistant Commissioner who has confirmed the demand of interest of Rs. 53,917.45 on the wrongly availed Modvat credit. 2. The brief facts of the case are that the appellants are engaged in the manufacture of LPG (Brass) Cylinder valves falling under Chapter Heading 8481.80. They had availed deemed Modvat credit on Brass waste and scrap after filing required declaration under Rule 57G for the period July, 1991 to September, 1991. The deemed credit availed by the appellants was denied by the lower authority vide his order-in-original dated 11-11-92. On appeal, the Commissioner (Appeals) decided the issue in favour of the appellants vide his O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not been provided for under Modvat Rules i.e. under Rule 57-I(3). Under Rule 57-I (3), it was said that interest had to be demanded at the rate fixed under Section 11AA for the amount determined under sub-section (2) of Section 11A. The emphasis is that the retrospective effect brought vide Explanation 2 to Section 11AA cannot be applied to the amount determined under Rule 57-I(3) of C.E. Rules, 1944, was not discussed in detail and in depth manner either by the Commissioner (Appeals) or the adjudicating authority who passed the O-in-O against which the assessee appealed to the Commissioner (Appeals). (b) On appeal by the assessee, the Collector (Appeals) set aside the order-in-original of the Assistant Collector vide Order-in-Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that since the duty pertained to the period July, 91 to September, 91 and since Section 11AA has been introduced in the year 1995 and since there was no provision for levy of interest prior to introduction of Section 11AA no interest could be demanded on the duty which was not paid wrongly. He also submitted that Rule 57-I(5) clearly indicates the date from which the interest is to be paid i.e. from the first day of the month succeeding the month in which credit was wrongly taken till the date of payment of such duty, under Section 11AA of the Act. He, therefore, prayed for setting aside the impugned order. 4. Shri C. Mani, learned DR on the other hand submitted that Section 11AA clearly states that where a person chargeabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , filed appeal before the Commissioner (Appeals) who decided in their favour and on appeal by the department, the Tribunal decided the matter in favour of the Department. Therefore, the determination of the duty was done by the Assistant Commissioner on 11-11-92 itself and the Tribunal as the second appellate authority has only dealt with and settled the dispute between the two parties before it by confirming the order-in-original. Therefore, it cannot be said that duty has been determined by the Tribunal. As regards the ground taken by the assessee that the interest provision cannot be applied to the past cases, I observe that in terms of the provisions contained in sub-rule (3) of Rule 57-I, read with Section 11AA, where the duty amount h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s premature. The effect of this ruling is that the proceedings for recovery of interest cannot commence and has to be kept pending when the matter remains unsettled. In the case before me the show cause notice demanding interest was issued after the dispute was finally settled by the order of the Tribunal dated 6-3-2000 and the order of the Tribunal attained finality, since the assessee has not gone in appeal against the said order. Therefore, the said case law does not help the appellants. 6. As regards the other ground taken that they were not given any chance to make their points before the Commissioner (Appeals), I observe that the Commissioner (Appeals) in Para 4 of the order-in-appeal has clearly stated that Shri R. Radhakrishnan, M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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