TaxTMI 
TaxTMI 
2015 (9) TMI 1376
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....h Court in the above order allowed the appellant's appeal and directed the Tribunal to hear the appeal on merits. Accordingly, the appeal is taken up for deciding the case on merits. 2. The appellant preferred this appeal against the Commissioner (Appeals) order dt. 24.9.2008 and the issue relates to only demand of interest under Section 11AA of the Central Excise Act. 3. The brief facts of the case are that appellants availed modvat credit on the inputs as well as on the capital goods during the year 1995 and 1999. Adjudicating authority disallowed the credit of Rs. 3,72,877 and confirmed the demand. The said was order was upheld both by Commissioner (Appeals) and this Tribunal vide Final Order No.854 to 858/2005 dt. 17.6.2005 an....
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....een made under Rule 57I, when the authority disallowed credit, it is deemd to be treated as duty not paid. Evenafter the Tribunal's order assessee has not paid entire amount in one lump sum but paid in various challans. Therefore, it is a case of non-payment of duty. Therefore, Section 11AA is rightly invoked for demanding interest and there is no time limit for recovery of interest which is automatic. 6. After hearing both sides I find that the short issue relates to whether demand of interest under Section 11AA is sustainable or otherwise. On perusal of records, the case relates to wrong availment of cenvat credit on inputs and capital goods availed during the year 1995-99 and the adjudicating authority confirmed the demand in the ....
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....of receipt of demand notice, he shall pay, in addition to the amount so determined, interest at such rate, as may be fixed, by the Central Board of Excise and Customs under section 11AA of the Act, from the date immediately after the expiry of the said period of three months till the date of payment." The word "shall" used in the above sub-rule confirms that there is no option to the appellant/assessee and interest shall be payable after expiry of 3 months from the date of receipt of confirmation of the demand. 9. The Hon'ble High Court of Bombay in the case of CCE & C Aurangabad Vs Padmashri V.V.Patil S.S.K. Ltd. - 2007 (215) ELT 83 (Bom.) clearly held in favour of the Revenue and interest is a civil liability of assessee who has....
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.... runs thus : Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person, who is liable to pay duty as determined under sub-section (2) or has paid the duty under sub-section (2B) of Section 11A, shall in addition to the duty be liable to pay interest at such rate ........" The terminal part in the quotation above, which is couched with the words shall and be liable clearly indicates that there is no option. As discussed earlier, this is a civil liability of the assessee, who has retained the amount of public exchequer with himself and which ought to have gone in the pockets of the Central Government much earlier. Upon reading Section 11AB together with Sections....