2015 (6) TMI 619

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....the facts of the case and in law, whether CESTAT was correct in law in deciding the appeal on the ground that section 11AB is prospective?" 3. We have heard Mr. Jetly appearing for the Revenue in support of this Appeal and Mr. Khemka appearing for the Respondent Assessee. The Respondent Assessee is engaged in the business of manufacturing of natural diamond powder and dust falling under Ch. H. No. 7101.80 of the Central Excise Tariff Act, 1985. The Assessee cleared these goods for sale without following the Central Excise Act, 1944 and Rules framed thereunder. The duty liability was not discharged. On investigation carried out by the Revenue/Department, it was revealed that the Assessee actually manufactured and cleared dutiable goo....

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....ranted in terms of the computation made by the Assessee. 5. On this communication from the Assessee, which was treated as the claim for refund, the Deputy Commissioner of Central Excise, (Division G-1), Mumbai passed an order on 22nd October, 2001 rejecting it. The conclusion recorded by him is that the show cause notice covers the period from February, 1995 to December, 1999. The Assessee has paid the entire amount of duty demanded along with interest, in installments. However, the Assessee requested that the interest prior to 28th September, 1996 has been erroneously collected. However, that assumption of the Assessee is incorrect because the provision enables imposition of interest in orders of adjudication made after 28th Septem....

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....thus, the Assessee's Appeal came to be allowed by the Tribunal by the impugned order. 8. Mr. Jetly appearing for the Revenue in support of this Appeal submits that the Tribunal lost sight of the fact that the claim for interest itself was untenable. Section 11AB which was invoked by the Assessee did not permit a claim for refund of any interest simplicitor. In other words, no application seeking refund of interest amount paid, leaving out the duty component was tenable. The words in Section 11AB(1) "any person claiming refund of any duty of excise and interest, if any paid on such duty" were substituted by Act 18 of 2008 w.e.f. 10th May, 2008. Therefore, the Assessee could not have filed any application for refund. The Assessee had ....

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....perused the memo of Appeal and the Annexures thereto. We are in agreement with Mr. Khemka that it is too late in the day for the Revenue to urge that the application was not maintainable. The application of the Assessee was to seek refund of a sum erroneously recovered as interest and for the period prior to 28th September, 1996. Since the demand was for a period from February, 1995 to December, 1999, till 28th September, 1996, no interest could have been levied on the unpaid duty amount. In these circumstances, the application for refund could not have been rejected only on the ground that it was not maintainable. The Revenue's pleas before us are in the nature of afterthought. We do not think that any time this objection was raised by the....