VENUS INDUSTRIES Vs. C.C.E.

JUDGEMENT

(1.) In this appeal, filed by the Revenue, the issue involved is whether the interest is demandable from M/s. Venus Industries under Section 11AA of the Central Excise Act.

(2.) Shri P.M. Rao, learned D.R., submitted that a show cause notice dated 22.3.91 was issued to M/s. Venus Industries for demanding the duty for the period from 1.3.86 to 13.8.88 as they had wrongly availed of the small scale exemption benefit under Notification No. 175/86 -CE; that the matter was adjudicated by the Collector under Order -in -Original No. 26/92 dated 23.4.92, by which he confirmed the demand of duty of Rs. 10,50,165.76 and penalty of Rs. 50,000/ - was imposed; that, however, on appeal, the appellate Tribunal, vide Final Order No. 384/2000 -B, remanded the matter to the Commissioner for consideration of the applicability of the Proviso (b) to Para 4 of the Notification No. 175/86; that the Commissioner, in de novo proceedings under Order -in -Original No. 45/2001 dated 28.11.2001, has denied the benefit of small scale exemption and demanded Central Excise duty amounting to Rs. 9,49,064.11, basides imposing a penalty of Rs. 50,000/ -; that on appeal, the appellate Tribunal, vide Final Order No. 315/02 -B dated 2.8.2002, upheld the demand of duty and reduced the penalty to s. 10,000/ -. He, further, submitted that the Deputy commissioner has directed the respondents to pay the interest under Sec. 11AA of the Central Excise Act; that the Commissioner (Appeals), under the impugned order, has allowed the appeal of the respondents against demand of interest on the ground that the interest was never demanded in the initial show cause notice was well as in the Order -in -Original passed by the Commissioner and that Section 11AA came into effect on 26.8.95 and the demand pertains to the earlier period; that the Commissioner (Appeals) had also observed that the respondents had discharged their duty liability along with the penalty within the stipulated period after passing of the final order of the CEGAT on 2.8.2002. The learned D.R. contended that there is no necessity of explicit mention of interest liability in the show cause notice since the legal provision in the Act is explicit; that as per the provisions of Section 11AA of the Act, interest on delayed payment of duty is to be recovered from the defaulter; that as the dues were not paid till 26.8.95, they are liable to pay interest. He, finally, mentioned that the respondents have deposited the duty amount in instalments and the last instalment was paid on 12.12.2002 and, accordingly, they are required to pay interest for the period from 26.8.95 to 11.12.2002. Reliance has also been placed on the decision in the case of CCE., Bhubaneswar -II vs Orissa Concrete Products (India) Pvt. Ltd., 2001 (133) ELT 787 (Tri. -Kolkata), wherein the Tribunal has held that the Provision os Section 11AA clearly shows that for the arrear cases pending for recovery before the enactment of Finance Act, 1995 if the defaulter fails to pay the duty within a period of three months from the date of enactment, he shall be liable for payment of interest.

(3.) Countering the arguments, Sh. J.P. Kaushik, learned Advocate, submitted that the demand of Central Excise duty was confirmed against the respondents by invoking the expended period of limitation and the necessary provisions in this regard are contained in Section 11AB of the Central Excise Act and not under Section 11AA; that the provisions of Section 11AA are "subject to provisions contained in Section 11AB" and as such, when the interest on delayed payment of duty which has been short levied, etc. is payable under Sec. 11AB, the interest under Section 11AA cannot be demanded; that it is evident from Part III of the Supplementary Instructions dealing "with Interest, Penalty, Confiscation, Duty Payment Under Protest" wherein it is mentioned that in the normal case, interest will be charged after three months of the determination of duty liability till the date of payment of duty and in case the duty is not paid, on account of fraud, suppression, etc, the interest will be charged from the 1st date of the month following the month in which the duty was not paid; that this shows that the provisions of Section 11AA are applicable only when the duty is demanded for the normal period of limitation. He also submitted that the interest was not demanded in the show cause notice and as such the levy of interest goes beyond the scope of show cause notice. Reliance has been placed on the decision in the case of Bhansali Engg. Polymers Ltd. vs C.C.E., Bhopal, 2001 (44) RLT 151 (CEGAT -Del.). Finally, the learned Advocate, submitted that the Ministry under Circular No. 665/46/02 CX dated 26.8.2002 has clarified that the net effect of the judgment in the case of M.P. Tapes is that Section 11AB of the Central Excise Act can be invoked only in respect of clearances effected after 28.9.96 irrespective of the date of passing of the adjudication order; that similarly, the interest under Sec. 11AA can only be demanded in respect of clearances effected after Section 11AA was inserted in the Central Excise Act.