Per P.G. Chacko : The appellants had delayed paying duty for certain fortnights between 1.12.2002 and 31.3.2003. Interest on such amounts of duty was paid for a period upto 31.3.2003. The jurisdictional Superintendent of Central Excise, Thirunagar Range, issued a letter dated 4.9.2004 to the appellants demanding interest on the said amounts of duty from 1.4.2003 under Rule 8 (3) of the Central Excise Rules, 2002, amounting to Rs. 3,66,360/-. Against this demand, the party preferred an appeal to the Commissioner (Appeals) and the latter rejected the appeal, for which the following reasons were stated:-

(a) The intimation sent by the Range Officer vide letter O.C. No. 909/2004 dated 4.9.2004 is not an appealable order; and

(b) The relief sought for by the appellants with respect to applicability of the amended provisions for determination of interest amount is premature.

2. In the present appeal filed against the decision of the appellate Commissioner, reliance has been placed on the Tribunal's decision Shree Baidyanath Ayurved Bhawan Ltd. Vs. Commissioner - 2001 (44) RLT 366 (CEGAT-Del.)=2001 (129) ELT 780 (Tri.-Del.), wherein a communication sent by a Superintendent of Central Excise demanding duty from the assessee was set aside on the ground that the demand was not preceded by issue of show-cause notice. The appellants have raised other grounds also against the impugned order. Learned counsel for the appellants has produced a copy of the Superintendent's letter No. 476/2007 dated 3.4.2007 which was received by the appellants on 4.4.2007. This letter reads as under:-

"Please refer to your letter dated 31.3.2007 on the above subject.

You were only required to pay the interest amount @ 13% as per Section 11AB of the Central Excise Act and not at the rate of 2% per month or Rs. 1,000/- per day. The Commissioner (Appeals) vide his Order in Appeal No. 135/04 (Order-in-Appeal No. 2/2005) dated 20.1.2005 has declined to grant relief as requested by you regarding interest and also held that the intimation sent by the Superintendent is not an appealable order. The Hon'ble Tribunal has also not granted any stay in this regard. Also, the CESTAT vide its Misc. Order Nos. 106 -61/2006-Ex. dated 11.12.2006 in the case of M/s. Pinkline Exim (P) Ltd. Vs. CCE, Jaipur dated 11.12.2006 has held that stay order stands vacated if appeal is not disposed off within the period specified (180 days) in view of first proviso to Section 35 (2A) of Central Excise Act, 1944. A copy of order in A.No. E/224/2005 as referred in your letter may please be sent to this office.

Hence you are called upon to pay the interest immediately on intimation to this office.

Yours faithfully,

Sd/-

(K. NATARAJAN)

SUPERINTENDENT"

Learned counsel submitted that sub-rule (3) of Rule 8 had been partly struck down by the Rajasthan High Court in the case of Lucid Colloids Ltd. Vs. Union of India - 2006 (200) ELT 377 (Raj.) and therefore the proposal to levy interest from the appellants in terms of the said sub-rule was liable to be set aside. Learned counsel also relied on judicial authorities with regard to appealable nature of the Superintendent's communications. The following decisions were cited:-

(a) Hyderabad Industries Ltd. Vs. Commissioner - 2002 (51) RLT 283 (CEGAT-Del.)=2002 (145) ELT 463 (Tri.-Del.), wherein a Superintendent's letter requesting the assessee to pay duty short-levied without following the procedure for such recovery of duty under Section 11A of the Central Excise Act was held to be an appealable order and the same was set aside.

(b) Metal Forgings Vs. Union of India - 2002 (53) RLT 507 (SC)=2002 (146) ELT 241 (SC), wherein show-cause notice was held to be a mandatory requirement for raising demands.

(c) Choudhary Minerals Chemicals Vs. Commissioner - 2006 (195) ELT 21 (M.P.), wherein recovery of interest on duty was stayed by the High Court after noting that no show-cause notice had been issued to the assessee for recovering interest.

3. Learned SDR reiterated t