TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 368
X X X X Extracts X X X X
X X X X Extracts X X X X
....MMR/04-05 dated 23rd February 2005, with the finding that the clearances were effected at Rs. 20,240 per kg instead of the usual price of clearance at Rs. 25,000, that determination of price under rule 6(b)(ii) of Central Excise Valuation Rules, 1975 was valid only after attempting ascertainment under rule 6(b)(i) and that appellant had paid the duty differential before issue of notice, confirmed demand but did not determine interest liability and did not impose penalty. Revenue is aggrieved by the failure to demand interest and to impose penalty. 2. Heard Learned Authorized Representative and Learned Chartered Accountant for respondent. 3. Learned Authorised Representative placed reliance on the decision of Hon'ble High Court of Bombay i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erest chargeable u/s. 11AB are declared. The second aspect would be whether there is any discretion not to charge the interest u/s. 11AB at all and we are afraid, language of Section 11AB is unambiguous. The person, who is liable to pay duty short levied/short paid/non-levied/unpaid etc., is liable to pay interest at the rate as may be determined by the Central Government from time to time. This is evident from the opening part of sub-section (1) of Section 11, which 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 ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Court while dismissing the appeal of the department. First of all, with due respect, it must be said that on going through the entire judgment of the Tribunal at Bangalore, there does not appear any submissions advanced regarding the issue of interest. The stray reference to interest has come in the judgment of the Tribunal unsupported by any reasons except that it has treated the interest chargeable u/s. 11AB at par with the penalty imposable u/s. 11AC. We have sufficiently distinguished the nature of liability of interest u/s. 11AB and penalty u/s. 11AC in the discussion hereinabove. The first one is civil liability whereas second is penal, if not criminal, liability. This is because u/s. 11AC, existence of mens rea is a must, whereas u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eds the self-assessment and to that extent. By this explanation, we are convinced that even if no notice is issued by the department because it agrees with the amount of short duty paid by the assessee as ascertained by the assessee himself under sub-section (2B), still the assessee shall be liable to pay interest over the same even without going through the process of determination as contemplated by Section 11A(1) and (2) commencing with a show cause notice and culminating with an order of the Central Excise Officer. The show cause notice and determination can go on if the short duty is not paid, but even if short duty is paid by taking liberty under sub-section (2B), we are afraid, that does not absolve the assessee from the liability to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by learned Counsel Shri Kolte that on payment of short duty as under sub-section (2B), before issuance of show cause notice, no interest u/s. 11AB can be charged, by virtue of portion of Section 11AB (2B) reproduced hereinabove. 5. Relying on the decision of the Hon'ble Supreme Court in Nirlon Ltd [2015 (320 ELT 22 (SC)], Learned Chartered Accountant claims that, in an entirely revenue neutral situation, there is no justification to allege intent to evade duty. Also relying on decision of the Hon'ble High Court of Madras in Commissioner of Central Excise v. M/s Tenneco RC India Pvt Ltd [2015-TIOL-1579-HC-MAD-CX], it was claimed that this decision was followed. 6. After consideration of the rival contentions, there can be no doubt that the....