Custom, Excise & Service Tax Tribunal
Cce, Jaipur-I vs M/S. Electrolux Kelvinator Ltd on 4 July, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
Date of Hearing17.02.2011
Date of decision:4.7.2011
Excise Appeal No.E/2025 of 2005-Excise Branch
[Arising out of Order-in-Appeal No.69-70(MPM)CE/JPR-I/2005 dated 23.03.2005 passed by the Commissioner of Central Excise (Appeals), Jaipur-I.
CCE, Jaipur-I Appellant
Versus
M/s. Electrolux Kelvinator Ltd. Respondent
For approval and signature:
Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see 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 of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Appearance: Rep. by Shri S.R. Meena, ld.DR for the appellant/Deptt.
Rep. by none for the respondent.
CORAM: Honble Shri Justice R.M.S. Khandeparkar, President
Honble Shri Rakesh Kumar, Member (Technical)
Order No/Dated
Per Rakesh Kumar
The Dy. Commissioner of Central Excise, Alwar issued notices dated 7.1.2005 and 27.01.2005 under Section 142(1)(C)(ii) of Customs Act, 1962 read with Rule 4 of the Customs (Attachment of property of defaulters for recovery of Customs Dues) Rules, 1995, as made applicable to the central excise matters by Notification No.68/63-CE dated 4.5.63 as amended issued under Section 12 of the Central Excise Act, 1944, the respondent for recovery of the central excise duty of Rs.37,465 and Rs.26,130/- respectively, along with interest. Against these notices, the respondent filed appeals to the Commissioner (Appeals) pleading that no demands for the amounts mentioned in the recovery notices have been confirmed by issuing show cause notice or passing any adjudication order. The Commissioner (Appeals) vide Order-in-Appeal No.69-70(MPM)CE/JPR-I/2005 dated 18.03.2005 allowed the appeals holding that notices dated 7.1.2005 and 27.1.2005 are not maintainable. Against this order of the Commissioner (Appeals), the department has filed these appeals.
2. None appeared for the respondent. Heard Shri S.R. Meena, ld. Departmental Representative, who assailed the impugned order by reiterating the grounds of appeal in the revenues appeal and pleaded that the amounts mentioned in the notices pertain to the interest chargeable for the period of delay in reversal of Cenvat credit under Rule 3(4) of the Cenvat Credit Rules, 2002 in respect of the cenvated inputs cleared as such, that for recovery of interest, no show cause notice is required to be issued and no adjudication order is required to be passed, that the notices for recovery of the amount of interest due to the Central Government had been rightly issued under Section 142(1)(C) (ii) of the Customs Act, 1962 read with Rule 4 of the Customs, (Attachment of Property of defaulters for recovery of Customs dues) Rules, 1995 as made applicable to the Central Excise matters by Notification No.68/63-CE dated 4.5.63 as amended, that Honble Supreme Court in the case of Commissioner of Sales Tax Vs. Qureshi Crucible Centre 1993 Suppl (3) SCC 495 has held that levy of interest is by operation of law and it does not require a separate order as such by any authority, that the Commissioner (Appeals) has erred in holding that notices issued under Section 142 (1)(C )(ii) of the Customs Act, 1962 by the Dy. Commissioner of Central Excise, Alwar are non-speaking orders and that in view of this, the impugned order is not correct.
3. We have carefully considered the submissions from both the sides and perused the records. The impugned order-in-appeal has been passed in respect of two notices i.e. 7.1.2005 and 27.01.2005 issued to the respondent under Section 142(1) (C ) (ii) of the Customs Act, 1962 read with Rule 4 of the Customs, (Attachment of property of defaulters for recovery of Customs dues) Rules, 1995 as made applicable to the central excise matters by Notification No.68/63-CE dated 4.5.63 as amended issued under Section 12 of the Central Excise Act, 1944. These notices had been issued for recovery of interest for the period of delay in payment of an amount equal to the Cenvat credit involved under Rule 3(4) of the Cenvat Credit rules, 2002 in respect of the clearances of cenvated inputs cleared as such. Admittedly, before issue of these notices to the respondent, neither any notice had been issued nor any order has been passed. Notice under Section 142(1)(C ) can be issued for in respect of the sums, which are due to the Government and which are not being paid by the assessee. In this case, these two notices dated 7.1.2005 and 27.01.2005 had been issued for recovery of sums representing interests for the period of delay in reversal of the Cenvat credit in respect of the inputs which had been cleared as such. In our view, before issue of these notices under Section 142 (1)(C )(ii) of Customs At, 1962 at least some orders quantifying the interest due should have been communicated to the respondent which has not been done in this case. The issue of notices dated 7.1.2005 and 27.01.2005 under Section 142 (1) (C ) (ii) of the Customs Act, 1962 to the respondent are, therefore, pre-mature and hence, we, therefore, do not find any infirmity in the impugned order. The Revenues appeal is dismissed.
[Pronounced in open court on 4.7.2011].
( Justice R.M. S. Khandeparkar) President ( Rakesh Kumar ) Member (Technical ) Ckp.
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