TMI Blog2012 (2) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... le by just sending intimation that they were surrendering the certificate. The Authorised Representative for Revenue submits that it is this dubious method that the Appellant has adopted to evade excise duty. As may be seen the adjudicating authority accepted that the factory was closed during Sep. 1997 and Oct. 1997 and also in March, 1998. The First Appellate authority has not accepted that the factory was closed during the period because intimations regarding last reading for electricity supply was not intimated and has confirmed duty liability for the entire period of Sep. 1997 to March, 1998. The Commissioner (Appeals) has accepted the contention of Revenue that the request for surrender of registration was an eye-wash and they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were issued demanding the short paid duty and proposing imposition of penalty and interest at 18% in terms of Rule 96ZP(3) of Central Excise Rules, 1944 read with Section 11AB of Central Excise Act, 1944. The details of the demands in the SCN are as under :- S. No. SCN Date Amount Month 1. Dated 18-3-1998 1,84,830.00 September, 1997 2. Dated 19-3-1998 1,84,830.00 October, 1997 3. Dated 19-3-1998 1,77,180.00 November, 1997 4. Dated 19-3-1998 1,34,150.00 December, 1997 and January, 1998 5. Dated 19-3-1998 1,40,150.00 February, 1998 and March, 1998 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this section. (2) Where a notification is issued under sub-section (1), the Central Government may, by rules, provide for determination of the annual capacity of production, or such factor or factors relevant to the annual capacity of production of the factory in which such goods are pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to be followed. Such conditions involve giving advance intimation taking meter reading for electricity supply etc. to make sure that the manufacturer does not actually do manufacturing activity during such period. However there are no such conditions prescribed in sub-section (2). Apparently the appellant has tried to take benefit of this loop-hole by just sending intimation that they were surrendering the certificate. The Authorised Representative for Revenue submits that it is this dubious method that the Appellant has adopted to evade excise duty. Against this background the events as stated by the Appellants are as under. 10. The appellant ceased to carry out any further manufacturing activity from 2-9-1997 and sent a request to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire period of Sep. 1997 to March, 1998. The Commissioner (Appeals) has accepted the contention of Revenue that the request for surrender of registration was an eye-wash and they were actually producing goods during the entire period. 13. The entire dispute is result of a weakness in the provisions of Section 3A(2) of the Central Excise Act inasmuch as the procedure prescribed under sub-section 3A(3) is not made applicable to 3A(2). There is also a problem that the department links registration to realization of revenue arrears but the real link between the two in the Central Excise Rules is only to the fact whether the person was doing manufacturing activity or not. In the earlier dispensation of licensing along with a bond for dischargin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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