S.S. Garg ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order dated 21.02.2018 passed by the Commissioner (Appeals) deciding two appeals of the appellant whereby the Commissioner (Appeals) has allowed the appeal against the demand of interest and imposition of penalty upon the appellant but upheld the Assistant Commissioner order rejecting the refund claim of Rs. 19,55,010/-.
2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of P or P Medicines classifiable under Chapter/heading No. 30.03 of the First Schedule to the Central Excise Tariff Act, 1985. One of the products manufactured by the appellant is Euphorbia Prostrata dry extract. In another proceeding a dispute arose regarding the classification of this product namely, whether it should be classified under chapter 30 as claimed by the appellant or under heading 13.02 as per the department's view. After adjudication of the show cause notice, the Assistant Commissioner confirmed demand of short payment of the differential duty of Rs. 2,71,108/-for the period October 2010 to February 2012. Aggrieved by the said order, the appellant filed the appeal before the Commissioner who upheld the order and thereafter the appellant filed the appeal before the Tribunal and the said appeal remain pending till 2022.
3. When appellant filed application for withdrawal of the appeal under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and the same was allowed to be withdrawn, thereafter, Superintendent, Derabassi vide his letter dated 07.01.2014 wrote to the appellant to deposit an amount of differential duty of Rs. 19,55,010/-for the period April, 2012 to May, 2013 when no proceedings were initiated by way of a demand show cause notice for this particular period. Although, no show cause notice was issued demanding differential duty by Assistant Commissioner but still the Range officer insisted upon the appellant to pay the differential duty of Rs. 19,55,010/-for the period April, 2010 to May, 2013 on their own. The appellant refused to pay the amount on the ground that no show cause notice was issued and no procedure laid down under Section 11A has been followed. However, when the department pressurized the appellant, thereafter, the appellant informed the department vide their letter dated 16.01.2014 that though they have filed the appeal in the Tribunal on the classification dispute the amount of differential duty of Rs. 19,55,010/-for the period March, 2012 to May, 2013 was paid under protest. Thereafter, vide letter dated 02.12.2014, Superintendent, Derabassi informed the appellant that though the amount of differential duty of Rs. 19,55,010/-has been paid, interest has not been paid and asked the appellant to pay the amount of interest as calculated by him amounting to Rs. 4,08,844/-. Thereafter, Assistant Commissioner, Derabassi issued a show cause notice dated 27.02.2015 to show cause as to why interest be not recovered on the amount of differential duty of Rs. 19,55,010/-thereafter, the appellant vide his letter dated 30.03.2015 replied to the Assistant Commissioner submitting that the show cause notice was hit by time bar in as much as the show cause notice related to the period March, 2012 to May, 2013 and also submitted various other reasons contesting the demand. In the meantime, the appellant made an application to the Assistant Commissioner dated 02.11.2015 requesting for refund of amount of Rs. 19,55,010/-paid under protest on the ground that no show cause notice was issued demanding the duty and no order was issued to vacate the protest.
4. After following the due process, the Assistant Commissioner vide his order dated 28.12.2015 confirmed the demand of interest on the amount of differential duty of Rs. 19,55,010/-and also imposed penalty under Rule 25 of the Central Excise Rules, 2002. Aggrieved by the said order, appellant filed the appeal before the Commissioner (Appeals) and also wrote letter dated 23.02.2016 to the Assistant Comm........