TaxTMI 
TaxTMI 
2017 (7) TMI 718
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....e Tribunal, Ahmedabad (The Appellate Tribunal) and prayed to quash and set aside the order on the following questions of law: (1) Whether, in the facts and circumstances of the present case, the Appellate Tribunal was correct in holding that the appellant is liable to pay interest when there is no provision in law for charging interest? (2) Whether, in the facts and circumstances of the present case, the Appellate Tribunal was correct in holding that the appellant has not agitated this issue and hence, the same cannot be gone into? 2 Heard finally by consent of the parties, therefore, this final judgment. 3 The relevant facts are as under: The Appellant is inter alia, engaged in the manufacture of Embroidered Grey Fabrics fal....
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....y so contemplated under Section 11AC of Excise Act and the charge of interest provided under Section 11AB of Excise Act. The above provision, therefore, we have to keep in mind while deciding the issues so raised in the present Appeal. 5 On 02.05.2003, the appellant replied to the show cause notice and denied the allegations. On 31.03.2004, the Joint Commissioner, Central Excise, Vapi vide its order confirmed the entire demand of ADE (T&TA) of Rs. 6,23,478/along with interest under Section 11AB and imposed equal penalty amounting to Rs. 6,23,478/under Section 11AC of the Central Excise Act, apart from penalty of Rs. 1,00,000/under erstwhile Rule 173Q of Central Excise Rules, 1994 (The Rules). 6 Being aggrieved, the appellant filed app....
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....k to the adjudicating authority to follow the directions contained in the earlier order passed by the Appellate Tribunal. 9 In the year 2010, 2011 and 2012, the adjudicating authority dropped the penalty under Section 11AC ibid vide order dated 29.03.2010 on the ground that there was no provision for confiscation or imposition of penalty under Section 11AC ibid for failure to pay AED (T & TA) which was levied under the provisions of the ADE (T&TA) Act. Consequently, the appellant filed an application seeking refund of predeposit of Rs. 3,12,000/made in compliance of order dated 07.11.2008 passed by the Appellate Tribunal. 10 On 26.12.2012, however, its order the adjudicating authority sanctioned the refund of Rs. 3,12,000/but appropri....
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....nable. 14 The learned counsel appearing for the Respondent submitted that the adjudicating authorities have, at every stage, confirmed the demand including of penalties and recovery of interest and, therefore, the issues have attained finality; the Appellant ought to have, at the relevant time, filed an Application for rectification of mistake; the same was not done and, therefore, such concurrent findings so given by the authorities need not be disturbed and/or interfered with in the present Appeal. We are not inclined to accept these contentions, even the reasoning given by the learned authorities while confirming the said demand of interest specifically in view of above provision of law and fact. There is no provision to collect such ....
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....uthority, in the absence of provisions of law, as it goes to the root of the matter for want of law and authority, is unsustainable and is required to be interfered with. The taxing provisions must be cleared and so also the charging Section and the mechanism to collect it. It needs to be construed strictly. [Commissioner of Income Tax (Central)I, New Delhi Vs. Vatika Township Private Limited (2015) 1 SCC 1 (5 Judges Bench).] 16 We have noted that the Appellate Tribunal while passing the order though dealt with Section 11AC of Excise Act, referring to Supreme Court judgment in State of M. P. vs. BHEL (supra), set aside the demand of penalty by allowing the Appeal of the Appellant. 17 The Department itself, therefore, accepted the posi....