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2015 (11) TMI 368 - AT - Central ExciseDuty demand under sub-rule (3) of Rule 96ZO of Central Excise Rules, 1944 - Compounded levy scheme - Held that:- According to the appellant, the letter was sent Under Postal Certificate (UPC) and the receipt thereof is not traceable. Under the provisions of Rule 195 of the Indian Post Office Rules , 1933 'Certificate of Posting' is granted to the public to afford an assurance that letters and other articles for which no receipts are granted by the Post Office and entrusted to servants and messengers for posting have actually been posted. Therefore, the seal of UPC at best can only presume that the letter was sent. It cannot draw any presumption that the letter was served/delivered to the addressee. In the present case, the respondent have not only disputed the receipt of the letter but also its veracity. The burden rests heavily upon the appellant to establish that the said letter was served on the respondent - A letter sent under UPC does not give any presumption that the same is served upon the addressee. In this case, the respondent has not only disputed receipt of the letter but also its veracity i.e. photocopy of the letter produced by the appellant. On analyzing, the facts, evidence and the law placed before us, we are not able to hold that the letter dated 26.5.1998 had reached the office of the Commissionerate. Therefore, the contention of the appellant that they had informed the Department by letter dated 26.5.98 stating that the appellant opted out of the compounded levy scheme, does not find favour with us. Department by its letter dated 22.10.1997 had passed the order determining the annual capacity of production of the appellant. In the said letter, the appellant was granted 10 days time to file objection. The appellant did not file any objection and has paid duty as determined during first month. It is obvious that the appellant had consented to the compounded levy scheme. - appellant cannot opt out of the scheme for the disputed period, after exercising his option to pay duty under sub-rule (3) of Rule 96ZO. Therefore, the duty demand of ₹ 7,26,352/- is sustainable. - However, penalty is set aside - Decided partly in favour of assessee.
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