Judgment: 1. Heard Shri N.K. Mishra, JDR for appellant and Shri K.K. Banerjee, Advocate for Respondent Mr. Mishra submits that the statement of Sri Lalit Prasad, Director (Taxation) of M/s. Prabhat Zarda Factory (India) Ltd. had admitted that they had claimed deductions under Octroi Heada amounting to Rs. 4,15,628.00 during the year 1996-97, whereas, they had actually paid Octroi Tax amounting to Rs. 2,42,103.52 only. While deciding the case, the adjudicating authority has relied upon the certificate of Chartered Accountant in which the expenses on account of Octroi borned by the company has been certificate to the tune of Rs. 5,38,095.78. He submits that the adjudicating authority has overlooked the charges given in the Show Cause Notice. He, further, submits that the penalty is to be imposed equivalent to the amount of duty demand which has not been imposed and also the interest has not been recovered. Therefore, he submits that the appeal may be allowed. In reply, learned aDvocate submits that so far interest is concerned, it is not leviable under Section 11AB of Central Excise Act, 1944. In present case, the duty demand has been paid prior to determination of the duty. So the question of interest doe snot arise. He submits that the differential duty on account of Octroi has been charged and rest of the amount has not been disputed by the revenue before adjudicating authority. Therefore, he submits that the appeal may be rejected. We have perused the case record and the order passed by the Commissioner Central Excise, Patna. Commissioner in his order has observed that : "I find that the actual expenses incurred by the assessee towards payment Octroi is on higher side than the deduction claimed by them from the prices of product during the financial year 1996-97. For the matter, the demand for the period 1996-97 is not sustainable on merits and facts and therefore, is fit to be dropped. As far as the demands for the financial year 1997-98 is concerned, the amount of expenses incurred by the assessee on account of Octroi is Rs. 6,32,146.84 and the deduction claimed from the value of the product on the count is Rs. 15,98,238.00, as per the certificate of Chartered Accountant dated 4.2.2002. Therefore it is clear that the Octroi paid by the assessee is much less than the amount of deduction availed and therefore, duty on the differential amount is leviable and payable. For arriving at the assessable value, I find that the formula adopted by the assessee as per the observations of the Hon'ble Tribunal in case of Indian Explosives Ltd. v. Collector as reported in 1996 (82) ELT 210 (Tri) is acceptable. From the submissions of assessee, it is revealed that they have accepted this fact and have paid duty accordingly. I find that the balance amount is payable and recoverable from the assessee since the duty on the assessing value of Rs. 6,44,061/- arrived at on the basis of rulings cited supra, works out to Rs. 3,22,031/- and the assessee have paid an amount of Rs. 4,26,314/- vide TR-6 Challan No. 41 dated 18.11.2000.
2. It is clear from the above discussion that the Commissioner has rightly arrived at the decision for determination of duty on account of Octroi. So far the interest is concerned, provisions of section 11AB provides that in such cases where the duty becomes payable consequent to issue of an order and such amount of duty is voluntarily paid in full without reserving any right to appeal against such payment at any subsequent stage within 45 days from the date of issue of such order or direction as the case may be, no interest shall be payable. In present case also the duty demand has been paid prior to determination of the duty and consequently interest is not leviable. In present case the duty has been aid prior to determination of the duty liability. Under these circumstances., The Commissioner has imposed only penalty of Rs. 10,000.00. We don't find anything wrong in the order and the order does not require any interference. The appeal has not merit. consequently, we dismiss the appeal.