M/S. Asiatic Gases Limited vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. PKS/84/BEL/2011-12 dtd. 4/8/2011 passed by the Commissioner of Central Excise (Appeals), Mumbai-III]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. Asiatic Gases Limited : Appellants

VS

Commissioner of Central Excise, Mumbai-III : Respondent

Appearance

Shri. S. P. Tavkar, Consultant for the Appellants

Shri. N.N. Prabhudesai, Superintendent(A.R) and Shri. Ashutosh Nath, Asstt.Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 8/5/2015 Date of decision: 8/5/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. PKS/84/BEL/2011-12 dtd. 4/8/2011 passed by the Commissioner of Central Excise (Appeals), Mumbai-III, wherein Ld. Commissioner (Appeals) has held that appellant is required to pay interest even though the differential duty was paid voluntarily in accordance with the order-in-original, which was upheld and appeal filed by the appellant was rejected. In the present case, the issue involved is whether the appellant is required to pay interest in a case where duty alongwith part interest was paid voluntarily.

2. Shri. S. P. Tavkar, Ld. Consultant appearing on behalf of the appellant submits that this appeal for limited relief from demand of interest of Rs. 1,06,516/-. He submits that interest on the delayed payment of duty cannot be demanded unless duty is determined under sub-section (2) of Section 11A. It is his submission that in the present case duty was not determined under subsection (2) of Section 11A therefore interest under Section 11AB cannot be demanded. It is his submission that differential duty was paid by the appellant voluntarily on there own therefore it is not case of determination of duty in terms of subsection (2) of Section 11A. He also submits that the Section 11AA was inserted from 11/5/2001 by Section 2 of the Finance Act therefore prior to 11/5/2001 interest is not payable in case where assessee discharged the duty liability voluntarily and same is not determined under subsection 2 of Section 11A. In support of his submission he placed reliance on the following judgments:

(a) Commissioner Vs. T.V.S. Whirpool Ltd.[2000(119) E.L.T. A177(S.C.)]

(b) EMCO Ltd. Vs. Commissioner of C. Ex. Mumbai[2011(272) E.L.T. 136(Tri- Mumbai)]

4. On the other hand, Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the interest is chargeable on delayed payment of duty and delay may be under any circumstances. In his support he relied upon the judgment in the case of Commissioner of Central Excise Vs. International Auto Ltd. [2010(250) E.L.T. 3(S.C)]. He also placed reliance on following judgments:

(a) Alstom T&D India Ltd. Vs. CESTAT, Chennai[2015(315) E.L.T. 182(Mad.)]

(b) Hindustan Insecticides Ltd. Vs. Commr. of C. Ex. & Service Tax(LTU)[2012(286) E.L.T. 208(Tri- Del)]

(c) Interfit India Ltd. Vs. Commissioner of C. Ex. Madurai [2011(274) E.L.T. 443(Tri- Chennai)]

(d) SKH Auto components Ltd. Vs. Commissioner of C. Ex. Delhi-IV[2011(274) E.L.T. 273(Tri. Del.)]

(e) Tenneco RC India(P) Ltd. Vs. Commissioner of C. Ex. Puducherry[2013(295) E.L.T. 233(Tri- Chennai)]

He further submits that in view of all the above judgments, it has been conclusively held that interest shall be unavoidably charged in case there is delay in payment of duty. Therefore the claim of the appellant that interest is not chargeable on the duty voluntarily paid by them prior 11/5/2001 is not tenable.

4. I have carefully considered the submissions made by both sides and perused record.

5. I find that issue is confined to demand of interest under Section 11AB. As it is admitted fact that there is substantial delay in payment of duty even though appellant has paid interest voluntarily. I am of the view that even though the duty was not determined under subsection (2) of Section 11A but when there admitted delay in payment of duty, interest provisions was made under Section 11AB and even prior to 11/5/2001 interest is chargeable on the delayed part of payment of duty. In the judgment of Honble Supreme Court in case of International Auto Ltd it becomes clear that interest is levied for loss of Revenue on any count. In view of the said decision interest was correctly demanded by the Adjudicating authority and upheld by the Ld. Commissioner(Appeals). Therefore I do not find any infirmity in the impugned order therefore the same is sustained. Appeal filed by appellant is hereby dismissed.

(Operative order pronounced in court)

Ramesh Nair Member (Judicial)

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