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2009 (5) TMI 278 - AT - Central ExciseCompounded levy scheme Production capacity based duty - Letters on closure of furnace furnished belatedly - the exact time of closure of factory and the timing at which the closure comes to an end not indicated in letters - It is to be noted that requirement of intimation regarding the date and timing of the closure and recommencement of production is not an empty formality - The requirement of timing and date along with closing and opening balance of stock would reveal that sufficient material is required to be placed at the disposal of the Revenue authorities in order to enable them to verify whether any clandestine production is in progress which may result in clandestine removal of the products by evading the duty thereon. - The exact time regarding the commencement and closure and corresponding information regarding the availability of stock required for the utilisation of the manufacture of the product held that abatement is not admissible - mere failure on the part of the appellant to clear the dues by 30-4-98 in terms of such proviso could not warrant levy of penalty as the said amendment had come into force on 1-5-98 and whatever dues remained after 1-5-98, those could be subject to levy of penalty. In this view of the matter, the penalty imposed in relation to the amount of duty demanded for the period starting from 2-9-97 to 6-4-98 amounting to Rs. 13,33,334/-, the same could not be imposed. The penalty would be leviable only in relation to the amount of duty for the period from 14-7-98 to 29th July, 99 Further, It is pertinent to note that the issue regarding limitation in terms of Section 11A of the said Act was neither raised before the lower authorities nor even in the memorandum of appeal filed in this Tribunal. In fact, the point was sought to be raised for the first time in the course of arguments. The point of limitation is not a pure question of law. It is essentially mixed question of law and facts - Considering the two decisions of the Apex Courts, the Larger Bench of this Tribunal in Mohinder Steels case, has clearly ruled that the time limit prescribed under Section 11A would not be attracted in relation to Compounded Levy Scheme under Rule 96ZO. Further, in tax matters, if the condition is essentially to enable the authority to have check over clandestine production and clandestine removal of the goods, than by no stretch of imagination such a condition can be said to be non-mandatory.
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