IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 6233 of 2008(P) ------------------------------------- PETITIONER: ------------------- VINOD KRISHNAN, SREE RADHA, KIZHAKAMBATTUKARA, TRICHUR – 5. BY ADV. MR.C.S.GOPALAKRISHNAN NAIR. RESPONDENTS: ------------------------ 1. COMMISSIONER OF CENTRAL EXCISE, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, COCHIN - 682 018. 2. ASSISTANT COMMISSIONER OF CENTRAL EXCISE, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, COCHIN - 682 017. 3. SUPERINTENDENT OF CENTRAL EXCISE, ANGAMALY RANGE, ANGAMALY, ERNAKULAM DISTRICT. 4. CHIEF COMMISSIONER OF CENTRAL EXCISE, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, COCHIN - 682 018. 5. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001. BY ADV. MR. THOMAS MATHEW NELLIMOOTTIL,SR.PANEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6233/2008-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AUCTION NOTICE ISSUED BY THE R.2. EXT.P.2: COPY OF THE LETTER DT. 19/10/2007 SUBMITTED TO THE R.2. BY THE PETITIONER. EXT.P.3: COPY OF THE LETTER O.C. NO. 883/2007 DT. 02/11/2007 ISSUED BY THE R.3. EXT.P.4: COPY OF THE LETTER C.NO.IV/16/4/98 ARREAR CELL DT. 22/11/2007 ISSUED BY THE R.1. EXT.P.5: COPY OF THE LETTER DT. 29/11/2007 SUBMITTED TO THE R.1. EXT.P.6: COPY OF THE LETTER DT. 11/12/2007 ADDRESSED TO THE R.4. EXT.P.7: COPY OF THE CHALLAN DT. 17/01/2008 FOR RS.15 LAKHS. EXT.P.8: COPY OF THE REQUEST DT. 17/12/2007 UNDER R.I. ACT SUBMITTED TO THE R.2. EXT.P.9: COPY OF THE LETTER C. NO. IV/16/26/2005 PART I DT. 08/01/2008 ISSUED BY THE R.2. EXT.P.10: COPY OF THE SHOW CAUSE NOTICE DT. 01/01/1991. EXT.P.11: COPY OF THE ORDER-IN-ORIGINAL NO.14/91 FILE C.NO.V/73/30/68/90 DT. 19/02/1991. EXT.P.12: COPY OF THE CESTAT DE-NOVA ORDER DT. 19/11/2001. EXT.P.13: COPY OF THE ORDER-IN-ORIGINAL NO.21/2002 DTD. 22/01/2002. EXT.P.14: COPY OF THE LETTER ON 23/01/2008 TO THE R.2. EXT.P.15: COPY OF THE LETTER C.NO.IV/16/26/2005 PART I DT. 30/01/2008 ISSUED BY THE R.2. EXT.P.16: COPY OF THE SHOW CAUSE NOTICE NO. 11/90 DT. 10/08/1990 IN RESPECT OF ORDER-IN-ORIGINAL NO. 14/91 DT. 19/02/1991. EXT.P.17: COPY OF THE SHOW CAUSE NOTICE NO. 16/91 DT. 02/07/1991 IN RESPECT OF ORDER-IN-ORIGINAL NO.21/2002 DT. 22/01/2002. EXT.P.18: COPY OF THE ORDER-IN-ORIGINAL NO.15/91 IN C.NO. V/73/30/3/91 DT. 19/02/2001. EXT.P.19: COPY OF THE LETTER DT. 04/02/2008 SUBMITTED TO THE R.4. EXT.P.20: COPY OF THE SCN DTD. 01/01/1991 SUPPLIED BY THE R.2. ALONG WITH HIS LETTER C. NO. IV/11/42/97 PRE PT II DTD. 05/05/2008. W.P.(C). NO.6233/2008-P: EXT.P.21: COPY OF THE LETTER ADDRESSED TO THE R.2. EXT.P.22: COPY OF THE LETTER C. NO. IV/11/42/97 PRE PT.II DTD. 02/04/2008 ISSUED BY THE R.2. EXT.P.23: COPY OF THE LETTER C. NO. IV/16/4/98-ARC DTD. 05/03/2008 ISSUED BY THE R.1. EXT.P.24: COPY OF THE LETTER DTD. 22/04/2008 ADDRESSED TO THE R.2. EXT.P.25: COPY OF THE LETTER C.NO.IV/11/42/97 PRE PT. II DTD. 05/05/2008. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE APPENDIX II DTD. 20/10/1998 ACKNOWLEDGED BY THE PETITIONER. EXT.R1.B: COPY OF THE APPENDIX IV DTD. 09/12/1998 WITH POSTAL ACKNOWLEDGMENT CARD. EXT.R1.C: COPY OF THE APPENDIX III C DTD. 09/12/1998 WITH POSTAL ACKNOWLEDGMENT CARD. EXT.R1.D: COPY OF THE APPENDIX III B PANCHANAMA DTD. 15/12/1998. EXT.R1.C: COPY OF THE AMENDMENT TO EXT.P.4. ISSUED BY JOINT COMMISSIONER. EXT.R1.F: COPY OF THE LETTER NO. 1160/2007 DTD. 29/02/2008. EXT.R1.G: COPY OF THE LETTER DTD. 27/02/1993 OF THE PETITIONER ADDRESSED TO CHAIRMAN, KSEB WITH COPY TO RANGE OFFICER, ANGAMALY. EXT.R1.H: COPY OF THE ORDER DTD. 18/06/1991 IN APPEAL NO. 206/91 (C) AND 207/91 (C). EXT.R1.I: COPY OF THE ORDER NO. E/49-50/93 B1 DD. 15/03/1993 OF THE APPELLATE TRIBUNAL. EXT.R1.J: COPY OF THE LETTER DTD. 19/11/1992 ADDRESSED TO SUPDT. OF CENTRAL EXCISE, ANGAMALY GIVEN BY THE PETITIONER. //TRUE COPY// P.A. TO JUDGE. Prv. V.GIRI, J. ----------------------------------------- W.P(C).No.6233 of 2008 ----------------------------------------- Dated this the 30th March, 2009 JUDGMENT The petitioner's father was running an industry called, “Teegeekay Industries” at Sreemoolanagaram in Ernakulam district engaged in fabrication and galvanization of M.S angles for erection of electric towers. The angles were supplied by the Kerala State Electricity Board and according to the petitioner, in fact the job done by the industrial unit did not amount to manufacture under the Central Excise Act. Be that as it may, the products manufactured by the petitioner's industrial unit were excisable items and excise duty was being levied and paid. There was default in payment of excise duty. The assessing authority proposed classification of items manufactured by the petitioner. Demands were made and confirmed under Exhibits P11, 13 and 18 and it is clear from the Writ Petition as also from the counter affidavit that Exhibits P11 and P18 have become final, as the assessee had challenged the said orders before the Collector of Central Excise & Customs (Appeals), who had dismissed the appeal as WP(C).6233/08 2 evidenced by Exhibit R1(h). The said order was confirmed by the erstwhile Customs, Excise and Gold (Control) Appellate Tribunal as per Exhibit R1(i) order. Thus, demands under Exhibits P11 and P18 have been confirmed. 2. In so far as Exhibit P13 is concerned, this is a de novo order passed by the assessing authority, in relation to the demands for the period from 1.1.1991 to 30.6.1991. The said order has also become final. The details of the amounts, which according to the Department, are in arrears towards the Central Excise duty from M/s.Teegeekay Industries, which reads as follows: “Rs.6,06,058/- As per Exhibit P11 Order in Original for the period 1.2.1990 to 30.6.1990. Rs.8,69,848/- Balance arrear as per Exhibit P18 Order in Original for the period 1.7.1990 to 31.12.1990. Rs.8,10,282/- As per Exhibit P13 denovo Order-in- Original for the period 1.1.1991 to 30.6.1991. Rs.3,06,445/- As per RT-12 Assessment by the Range Officer, Angamaly for there period 10/1991 to 7/1992. ------------------- Rs.25,92,633/- ========” 3. As stated above, Exhibits P11 and P18 orders have become final as they were appealed against and the appeals WP(C).6233/08 3 also have been dismissed. The demand contained in Exhibit P13 has also become final and it is to be noted that the petitioner has no serious dispute as regards Exhibit P13. 4. The dispute raised by the petitioner essentially relates to two aspects. Firstly, it is contended by the petitioner that all the aforementioned demands relate to a period prior to 1995 and therefore interest cannot be levied under Sections 11AA and 11AB of the Central Excise Act, because the said Sections were brought into force only with effect from 26.5.1995 and 28.9.1996 respectively. But, I am in agreement with the submission made by the learned counsel for the respondents, Mr.Thomas Mathew Nellimoottil that the amounts which were remained as outstanding on 26.5.1995 and 28.9.1996 can be subjected to a levy of interest with effect from the said dates. 5. The second aspect highlighted by the petitioner relates to the demands for an amount of Rs.3,06,445/-. It is the specific case of the petitioner that the said amount is not covered by a final demand passed by a competent authority under Section 11A and served on the petitioner. It is the case of the respondents that the said amount emanates from RT-12 assessment made for the period from 10/01 to 7/92 by the WP(C).6233/08 4 Range Officer, Angamaly. I do not find any specific case in the counter affidavit that the said amount of Rs.3,06,445/- is the subject matter of a written demand raised by the competent authority and issued under Section 11A of the Central Excise Act. 6. I am of view that as it stands above, in the absence of any material to show that an amount of Rs.3,06,445/- emanates from a demand confirmed under Section 11A of the Central Excise Act, it is not open to the respondents to recover the same from the assessee. 7. Mr.Gopalakrishnan Nair, learned counsel appearing for the petitioner submits that at this juncture the petitioner's liberty to approach the competent authority for a waiver/reduction of interest with effect from/after the date of introduction of Sections 11A and 11AB of the Central Excise Act may be left open. It is open to the competent authority to take a decision in the matter and order reduction or waiver of interest, if otherwise permissible under law. In the result, the Writ Petition is disposed of holding that the demand for an amount of Rs.3,06,445/- made on the petitioner is unsustainable in the absence of an order passed WP(C).6233/08 5 by the competent authority for the said amount in terms of Section 11A of the Central Excise Act. Demands made pursuant to Exhibits P11, P18 and P13 are valid and proper and it is open to the respondents to pursue steps to recover the said amount from the petitioner. If the petitioner approaches the competent authority for the reduction or waiver of interest, then the said authority may consider the said claim in accordance with law. It is open to the respondents to consider the lifting of attachment levied on the properties of the assessee on payment of the duty and interest. If the authority holds that the assessee is entitled to remission of interest, then the liability of the petitioner will be restricted to such amounts. Writ Petition is disposed of as above. V.GIRI, JUDGE vgs.