TaxTMI 
TaxTMI 
2019 (2) TMI 563
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....terest was issued after normal limitation period. The brief facts of the case are that the appellant had manufactured and cleared un-branded Motor Spirit (Petrol) and HSD (Diesel) on payment of duty to M/s BPCL and M/s HPCL during the period from March 2008 to October 2009 in terms of Notification No. 4/06-CE dated 01.03.2006. The appellant had paid the duty at lower rate as applicable to Motor Spirit/HSD intended for sale without a brand name. However, subsequent to the clearance of goods to buyers M/s BPCL and M/s HPCL, in some cases they had converted the same quantity of such duty paid un-branded Petrol/Diesel into branded Petrol fuel by adding some additives under the misconception of law. The appellant voluntarily paid differential du....
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.... No. 4/06-CE. He relied upon the judgments in the case of state of Haryana Vs. Dalmia Dadri Cement Ltd 2004 (178) ELT 13 (SC). He also placed reliance on the following judgments: • Hindustan Petroleum Corporation Ltd 2009 (234) ELT 648 (T) • Bharat Petroleum Corporation Ltd 2013 (295) ELT 106 (T) • Bharat Petroleum Corporation Ltd 2009 (240) ELT 403 (T) • Bharat Petroleum Corporation Ltd 2018 (361) ELT 950 (T) 3. He submits that the Commissioner has unjustly held that, once the appellant has paid differential duty, interest should also be payable inevitable. He submits that once duty itself admittedly not payable, question of consequential penalty and interest does not arise. He placed ....
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.... the interest under Section 11AB and imposed penalty under Rule 25 of the Central Excise Rules, 2002 on the ground that the appellant has delayed the payment of duty. We find that the duty so paid by the appellant was not lawfully payable on the ground that the appellant had admittedly cleared un-branded Petrol and Diesel which attracts lower rate of duty in terms of Notification No. 4/06-CE. On this issue, the department has also not raised any SCN, therefore, the department itself has admitted that the appellant was eligible for lower rate of duty in terms of aforesaid Notification. Therefore, differential duty was not payable at all by the appellant. The interest was demanded under Section 11AB, which reads as under: Section 11AB: Int....
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.... have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.] Explanation 1.- Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal 5[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such reduced amount of duty. Explanation 2.-Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal 5[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such increased or further increased amount of duty.]" 6. From the plain reading of above section 11AB, it is seen that the interest is chargeable only in c....
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....f such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. -Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reaso....