M/S. Kores (India) Ltd vs Cce, Chennai Ii
- CitationAppeal No. 115/08
Ratio decidendi
The rule this decision rests on
Where the Tribunal reduces a duty demand, interest under section 11BB of the Central Excise Act, 1944 is not payable on the reduced amount where the appellant has discharged that duty; the date of determination of duty for the purposes of Explanation I to section 11BB is the date on which an amount of duty is first determined to be payable by the order that is ultimately sustained, and interest is leviable only where the demand so determined is not paid.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. 115/08 (M-II) dated 8.5.2009 passed by the Commissioner of Central Excise (Appeals), Chennai)
M/s. Kores (India) Ltd. Appellant
Vs.
CCE, Chennai II Respondent
Appearance
Shri J. Shankar Raman , Advocate, for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent
CORAM
Honble Shri D.N. Panda, Judicial Member
Date of Hearing / Decision: 06.03.2015
Final Order No. 40226 / 2015
Learned counsel submits that appeal was dismissed for non-appearance of the counsel who is 88 years old. The appeal having merit dismissal thereof for non-prosecution without going into the merit shall be contrary to law laid down by the apex court in the case of Balaji Steel Re-Rolling Mills Vs. CCE 2014 (310) ELT 209 (SC).
2. Perusal of the order dated 6.5.2014 shows that because of the appeal was old and none appeared that was dismissed exparte.
3. To do justice to both sides restoration of appeal is warranted for which that is done.
4. On merit, learned counsel says that the whole dispute is on leviability of interest on the ultimate demand arose upon decision of the Tribunal. He invites the attention to Explanation I to section 11BB of Central Excise Act, 1944 to submit that mandate is that the duty earlier payable in adjudication if reduced by the order of the Tribunal, the date of determination of the duty shall be the date on which an amount of duty is first determined to be payable. Therefore, adjudication order which gave rise to the demand of duty to the extent confirmed by Tribunal, becomes enforceable demand. Only if that demand is not paid, then there shall be levy of interest. But that is not the case in the present appeal. The demand which was ultimately reduced by Tribunal having been discharged by appellant there shall be no interest liability. He relies on the decision of Honble High Court of Chhattisgarh in the case of Raiur Bright Steel & Wire Weld Industries Ltd. Vs. Union of India 2014 (305) ELT 369 (Chhattisgarh).
5. Revenue on the other hand submits that the order of the authority below are correct and interest is payable.
6. Proposition of law stated by learned counsel, fortified by the decision of Honble High Court of Chhattisgarh does not call for any different proposition. Accordingly, appeal is allowed. Consequential relief, if any, shall flow in accordance with law.
(Dictated and pronounced in open court)
(D.N. Panda) Judicial Member
Rex
2
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