IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 WP(C).No. 29381 of 2007(W) --------------------- PETITIONER(S): ----------------------- 1. M/S.TIMPEK PLYWOOD MILLS, P.B.NO.25, PORATHISSERRY, IRINJALAKKUDA, THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MR.P.T.ELIAS. 2. MR.PUNNOOSE ELIAS, PARTNER, M/S.TIMPEK PLYWOOD MILLS, P.B.NO.25, PORATHISSERRY, IRINJALAKKUDA, THRISSUR DISTRICT. 3. MRS. RENU THOMAS, PARTNER, M/S.TIMPEK PLYWOOD MILLS, P.B.NO.25, PORATHISSERRY, IRINJALAKKUDA, THRISSUR DISTRICT. BY ADVS. SRI.JOSEPH KODIANTHARA SRI.TERRY V. JAMES RESPONDENT(S): ------------------------- 1. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, MUKUNDAPURAM, THRISSUR DISTRICT. 2. THE ASSISTANT COLLECTOR OF CENTRAL EXCISE, TRICHUR DIVISION. 3. THE SUPERINTENDENT OF CENTRAL EXCISE, IRINJALAKUDA. R1 BY GOVT. PLEADER SMT. NISHA BOSE, R2 & R3 BY ADVS. SRI.P.PARAMESWARAN NAIR, ASG SRI.THOMAS MATHEW NELLIMOOTTIL, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 29381 of 2007(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER BEARING NO. C.NO. V/44/17/139/89 DATED 3-4-1991 OF THE 2ND RESPONDENT. EXT.P2 : COPY OF THE ORDER DATED 27-8-1991 PASSED BY THE COLLECTOR OF CENTRAL EXCISE (APPEALS), COCHIN IN APPEAL NO. 188/1991. EXT.P3 : COPY OF LETTER DATED 30-8-1991 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P4 : COPY OF THE ORDER DATED 18-1-1995 OF THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, MADRAS IN E/REF. 48 & 49/90 IN APPEAL NO. E/393 & 392/1990. EXT.P5 : COPY OF LETTER DATED 24-06-1998 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P6 : COPY OF THE LETTER DATED 29-6-1998 FROM THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P7 : COPY OF THE LETTER DATED 18-12-2002 SENT BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P8 : COPY OF THE LETTER DATED 5-1-2003 SENT BY THE 1ST PETITIONER TO THE 3RD RESPONDENT. EXT.P9 : COPY OF THE LETTER DATED 8-7-2005 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P10 : COPY OF THE LETTER DATED 14-10-2005 SENT BY THE 1ST PETITIONER. EXT.P11 : COPY OF THE LETTER DATED 18-10-2005 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXT.P12 : COPY OF THE LETTER DATED 21-10-2005 SENT BY THE 1ST PETITIONER TO THE 3RD RESPONDENT. EXT.P13 COPY OF THE LETTER DATED 24-10-2005 SENT BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P14 COPY OF THE LETTER DATED 22-11-2005 SENT BY THE 1ST PETITIONER TO THE 3RD RESPONDENT. (Contd...) WP(C).No. 29381 of 2007(W) EXT.P15 COPY OF THE LETTER DATED 28-11-2005 SENT BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P16 COPY OF THE DEMAND NOTICE DATED 7-7-2007 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER WHICH WAS RECEIVED ON 4-8-2007. EXT.P17 COPY OF THE ATTACHMENT ORDER DATED 7-7-2007 AGAINST THE 3RD PETITIONER WHICH WAS RECEIVED ON 4-8-2007. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.29381 of 2007-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2011. JUDGMENT The petitioners in this writ petition, three in number who are representing a Plywood Mill, seek to challenge the various proceedings and recovery notices by disputing the liability under Section 11AA of the Central Excise Act. The main contention is that the above provision is prospective in operation and no demand for interest with respect to delayed payment of excise duty can be raised for the period prior to 1995, viz. prior to the introduction of Section 11AA to the Central Excise Act, in 1995. 2. Evidently, as submitted by the learned Standing Counsel for the respondents, the issue is covered against the petitioner in the light of the decision of the Supreme Court, reported in Commissioner of Central Excise, Pune v. M/s. SKF India Ltd. (CDJ 2009 SC 1368). It was held in para 10 therein, as follows: “10. Sub-section (2B) of Section 11A provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment wpc 29381/2007 2 made by him and in that event he would not be given the demand notice under sub-section (1). But Explanation 2 to the sub-section makes it expressly clear that such payment would not be exempt from interest chargeable under section 11AB, that is, for the period from the first date of the month succeeding the month in which the duty ought to have been paid till the date of payment of the duty. What is stated in Explanation 2 to sub-section (2B) is reiterated in section 11AB that states where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person who has paid the duty under sub-section (2B) of section 11A, shall, in addition to the duty, be liable to pay interest......It is thus to be seen that unlike penalty that is attracted to the category of cases in which the non payment or short payment etc. of duty is “by reason of fraud, collusion or any wilful mis- statement or suppression of facts, or contravention of any of the provisions of the Act or of Rules made thereunder with intent to evade payment of duty”, under the scheme of the four sections (11A, 11AA, 11AB & 11 AC) interest is leviable on delayed or deferred payment of duty for whatever reasons.” 3. In the light of the above, the petitioners are not entitled to succeed in the writ petition. It is further submitted by the learned counsel for the petitioners that the petitioners have cleared the liability during the pendency of the writ petition. The said aspect will be examined by the respondents and if the entire amounts have been paid, the recovery proceedings will be wpc 29381/2007 3 accordingly dropped. With the above observation, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/