2011 (12) TMI 196

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....llowing substantial questions of law:-   "(a). Whether mere mention of wrong provision of law (Section 11AC) in the show cause notice dated 23.1.2002 takes away th power to levy/realise interest when Section 11AB of the Act specifically provides for mandatory levy of interest?   (b). Whether in order to charge interest under Section 11AB of the Act it is necessary to invoke the provisions of Section 11AB in the adjudication order itself?"   Briefly stated, the facts giving rise to the present appeal are as follows:-   The respondent assessee is engaged in manufacture of sugar by vaccum pan process and molasses falling under Chapter Central Excise Tariff heading No. 1701.31/1701.39 and 1703.10 of Central Excis....

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....ad the Revenue preferred an appeal before the Tribunal. The respondent assessee also feeling aggrieved preferred an appeal. It appears that the appeal preferred by the Revenue was heard and decided independently without hearing the appeal preferred by the respondent assessee. The Tribunal vide order dated 11th February, 2004 had dismissed the appeal preferred by the Revenue on the ground that the provisions of Section 11AB was not invoked in the show cause notice and, therefore the prayer for levy of interest on the duty confirmed against the assessee cannot be allowed.   We have heard Sri S.P. Kesarwani, learned Senior Standing Counsel for the appellant, and Sri Krishna Agarwal, learned counsel appearing for the respondent - assess....

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.... already there in the show cause notice. Instead of mentioning Section 11AB he has mentioned Section 11AC to which the respondent assessee was asked to submit its reply. In our considered opinion it did not affect the contents of notice as it is well established that mere quoting of a wrong provision would not invalidate the notice, if the proposed action can be justified under any statutory provision. Reference can be made to the following decisions of the Hon'ble Supreme Court.   P. Balakotiah vs. Union of India and Another (AIR 1958 SC 232), H.L. Mehra vs. Union of India and Another [(1974) 4 SCC 396], State of Karnataka vs. Krishnaji Srinivas Kulkarni [(1994) 2 SCC 558] and M.T. Khan and others vs. Government of A.P. and others ....