2024 (6) TMI 1001

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....3/2008, 28/4/2008 and 05/5/2008. On account of such finalization under Rule 9B(5) of the CER, 1944, the Appellant was asked to pay differential duty of Rs. 12,40,886/-. The Appellants paid Rs. 6,04,507/- and have filed the Appeal for the balance amount before the Commissioner (Appeals). At the time of filing their Appeal before Commissioner (Appeals), they have paid the balance amount of Rs. 6,36,379/- on 23/10/2009. Show Cause Notice was issued on 24/03/2009 in terms of Section 11A seeking to recover Rs. 12,40,886/- and appropriated the already paid Excise Duty of Rs. 6,04,507/- and seeking to charge interest in terms of Section 11AA of the CEA, 1944. After due process, the Adjudicating Authority confirmed the demand of Rs.12,40,886/- and ....

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....nt is finalized. He further submits that the provisions of interest under Section 11AB were introduced with effect from 11/5/2001 only. Though the final assessment were completed in March, April & May, 2008 for the period May 1991 to March 1994, the Appellants were in no way responsible for such delayed finalization of the assessment. Even in the Show Cause Notice, there is no allegation that the Appellant has adopted any delaying tactics in finalizing the assessment. Therefore, even if the interest provisions have come into effect from 11/5/2001, the same should not be applied in this case. Further he also points out that the Commissioner (Appeals) vide his OIA dated 18/02/2013 has held that when the differential duty has already been paid....

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....ts of Rule 9B(5) cited above, we do not see any provision for recovery of interest when the differential duty is paid. In case of Serai Kella Glass Works Pvt. Ltd. Vs. Collector of Central Excise, Patna-1997 (91) ELT 497 (SC), which has been relied upon by the lower authority, in fact supports the case of the Appellant. It has been held therein that after final assessment, there is no need to give any further notice under Section 11A for recovery of differential duty amount. Precisely for this reason, the Commissioner (Appeals) has held that the OIO passed is not proper. 8. On going through the case law of Kitply Industries Ltd. vs. Commr. of Central Exise, Shillong, cited supra, the Tribunal has held as under:- "However, as poi....

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....issions, we find that it is an admitted fact that the demands have not been determined in terms of Section 11A(2) of the Central Excise Act, 1944. Therefore, the question of demanding interest in terms of Section 11AB of the Act does not arise. The Order-in-Original only has confirmed the interest which is upheld by the Commissioner (Appeals). As there is no determination of duty under Section 11A of the Central Excise Act, the question of confirmation of interest in terms of Section 11AB does not arise as held by the Tribunal judgments cited above. Respectively following the same, the impugned order is set aside and the appeal is allowed with consequential relief if any. [Emphasis supplied] 10. We find that in this case, there was no ne....