Custom, Excise & Service Tax Tribunal
M/S Indian Oil Corporation Ltd vs Commissioner Of Central Excise, ... on 12 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad ~~~~~ Appeal No : E/11629/2013-DB (Arising out of Order-in-Original No. 16/Demand/C.Ex/Commr. /BRC-I/2013 dated 28.2.2013 passed by Commissioner of Central Excise & Customs, Vadodara) M/s Indian Oil Corporation Ltd. : Appellant (s) Versus Commissioner of Central Excise, Vadodara : Respondent (s)
Represented by:
For Appellant (s) : Shri Willingdon Christian, Advocate For Respondent (s): Shri J. Nagori, Authorised Representative CORAM:
Dr. D. M. Misra, Honble Member (Judicial) Mr. Raju, Honble Member (Technical) Date of Hearing/Decision : 12.02.2018 Order No. A/10333/2018 Per: Dr. D. M. Misra Heard both sides.
2. This is an appeal filed by the appellant against Order-in-Original No. 16/Demand/C.Ex/Commr./BRC-I/2013 dated 28.2.2013 passed by Commissioner of Central Excise & Customs, Vadodara.
3. Briefly stated facts of the case are that the appellant is a Public Sector Undertaking engaged in manufacture of various petroleum products. During the relevant period from April, 2006 to December, 2010 they had paid differential duty of Rs.49,27,92,042/- on various counts. Since they have not paid interest under Section 11AB of the Central Excise Act, 1944, a show-cause notice was issued to them on 31.3.2011 for recovery of the interest amounting to Rs.3,62,68,606/-. On adjudication, the demand was confirmed. Hence, the present appeal.
4. Learned Advocate for the appellant submits that the amounts have been paid during the relevant period voluntarily and the show-cause notice demanding interest had been issued invoking the extended period of limitation, therefore, not sustainable in law in view of the judgment of Hon'ble High Court of Delhi in the case of Hindustan Insecticides Ltd. Vs. Commissioner of Central Excise 2013 (297) ELT 332 (Del). Further, he submits that in the impugned order, the learned Commissioner has categorically held that there was no suppression or mis-declaration.
5. Learned AR for the Revenue reiterates the findings of the learned Commissioner. He submits that in view of the judgment of Hon'ble Allahabad High Court in the case of APL Appolo Tubes Ltd. Vs. Dy. Commissioner, Commercial Tax 2017 (356) ELT (All), even though passed in the context of transaction of VAT on the issue of liability of interest, the Hon'ble High Court has held that there is no separate show-cause notice required to be issued for recovery of interest.
6. We find that this issue has been considered by the Hon'ble High Court of Delhi in the context of recovery of interest under Section 11AB of the CEA, 1944 in case of another PSU i.e. Hindustan Insecticides Ltd. (supra), wherein differential duty was paid on revision of the value, however, no interest was paid. After analysing the principles of law laid down in this regard by the Hon'ble Apex Court, the Hon'ble Delhi High Court observed as follows: -
14.?A reading of the aforesaid paragraph would show that in the said case notice of payment for interest was issued after four years and it was held that it was beyond a reasonable period and the department could recover the amount from the Assessing Officer, who had not taken steps for four years and not from the respondent-assessee therein. The finding of the Supreme Court on interpreting the applicable Act was that no limitation period was prescribed, therefore, proceedings for recovery could be initiated within a reasonable time. The ratio in the said case is distinguishable for the reason that payment of interest is to be made under Section 11A and, therefore, the period of limitation prescribed therein would equally apply as has been held by the Delhi High Court in the case of Kwality Ice Cream Company (supra), Punjab and Haryana High Court in the case of M/s. VAE VKN Industries Private Limited (supra) and Gujarat High Court in Gujarat Narmada Fertilizers Company Limited (supra). These judgments have relied upon the decision of the Supreme Court approving the view of the Tribunal in TVS Whirlpool Limited (supra) wherein pari materia provisions of the Customs Act were considered. This being a distinguishing feature, we feel that the appellant is entitled to succeed in the present appeals. The question of law is accordingly answered in affirmative, i.e., in favour of the appellant and against the respondent-Revenue.
7. In the present case also, there is no allegation of suppression of facts and the show-cause notice was issued after a period of 4 years, therefore, the interest should be limited to the normal period of limitation without invoking the extended period.
8. The appeal is disposed of as above.
(Dictated and pronounced in the Court)
(Raju) (D. M. Misra)
Member (Technical) Member (Judicial)
Sinha
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Appeal No. E/11629/13