9911796707
TMI Blog2002 (11) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... s. in lakhs) 1. M/s. Sanjoo Prints P. Ltd. 23-7-02 SC/MZ/CE/ 74/2002 4 1.50 6.00 2. M/s. Sanjoo Prints P. Ltd. 23-7-02 SC/MZ/CE/75/2002 4 1.50 6.00 3. M/s. Sanjoo Prints P. Ltd. 23-7-02 SC/MZ/CE/76/2002 4 1.50 6.00 4. M/s. Sona Inds. P. Ltd. 26-8-02 SC/MZ/CE/87/2002 4 2.00 8.00 5. M/s. Calison Fibres P. Ltd. 25-9-02 SC/MZ/CE/117/2002 8 1.50 12.00 6. M/s. Calison Fibres P. Ltd. 23-7-02 SC/MZ/CE/118/2002 8 1.50 12.00 7. M/s. Calison Fibres P. Ltd. 23-7-02 SC/MZ/CE/119/2002 4 2.00 8.00 2. As per Notification No. 43/98 (N.T.), dated 10-12-1998, as amended, read with Sub-rule (3) and (5) of Rule 96ZQ (as amended from time to time) of the erstwhile Central Excise Rules, 1944, the applicants were required to pay the duty in advance by a prescribed date of the said month, and duty outstanding after the prescribed date is payable along with interest @ 36% p.a./24% p.a. on the outstanding amounts and penalty equal to the Central Excise duty outstanding. 3. On a scrutiny of RT12 returns it was found that the applicants had not paid the duty amounts in the prescribed manner on or before the prescribed dates, but had paid a later date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered only as an inadvertent omission or mistake, which cannot preclude the relief of approaching the Settlement Commission by the applicant. 9. The Advocate referred to certain decided case laws and requested for admission of the applications. His arguments and view of the Bench are discussed in the following paragraphs. 10. According to the ld. Advocate, the SCNs refer to penalty in terms of Rule 96ZQ(5) while the Orders refer to penalty on outstanding duty amount. The SCNs have recorded the debit of duty after the relevant date as well as payment of interest for the duty. 11. Reliance was also placed on the decision of a 5 member Bench of Hon. CEGAT in Jay Yuhshin Ltd v. CCE, New Delhi reported in 2000 (119) E.L.T. 718 (Trib. - LB). In particular, attention of the Bench was drawn to Para 11 therein. The said para inter alia deals with the powers of Central Excise Officer to issue SCN under Section 11A(1) of the Central Excise Act, 1944 and concludes "so long as it is not in doubt that there has been an occurrence of non-levy/Short levy/or non-payment/Short payment on the relevant date, the precondition for issuance of SCN u/s 11A(1) are fully met and notice v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Settlement Commission. But the facts as available in the said order would indicate that the applicant had a dispute with reference to the duty liability itself. But even then, the Settlement Commission ultimately settled the case by ordering the applicant therein to pay the duty as determined by the Commissioner inasmuch as the applicant had not challenged the Order of the Commissioner. But here, in this case, there is no such dispute with regard to duty fixed or the duty liability. 15. As regards additional duty disclosure, not disclosed before the jurisdictional officer, vide Section 32E(1), the Advocate has referred to the decision of this Bench in Bell Granito Ceramica Ltd. - 2001 (133) E.L.T. 495 (Sett. Comm.) and has argued that the applicant has accepted duty more' than Rs. 2 lacs, as the duty was not paid on the due date, but subsequently paid with interest @ 36% p.a. The reliance on the order of the Bench in Bell Granito case is misplaced, because, in the said case, the disclosure before the proper officer in the Bill of entry was in accordance with Notification 160/92-Customs under EPCG Scheme, whereas in the settlement application, duty disclosed was high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1995 (214) ITR 0086 - ITSC at p.8 of the order stated that- "the case for the purpose of Chapter XIX-A-"Settlement of Cases" - means a proceeding in respect of one or more assessment years and may be a proceeding pending at the stage of assessment or reassessment or in appeal or revision. The pendency of a proceeding before the income-tax authority is an important condition. At any stage of such proceeding the applicant can make an application to the Commission for settlement of his case." (Emphasis Provided) again another Special Bench of the IT & WT Settlement Commission in the case of Gulraj Engineering Construction Company - 1995 (79) Taman 463 observed as follows : "The scheme of settlement permits - an assessee to make an application for settlement of his case to the Commission at any stage of pendency of proceedings concerning the assessment or reassessment of his income in view of sub-section (1) of Section 245C read with clause (b) of Section 245A of the Act......." (Emphasis Provided) 18. The Hon'ble Supreme Court in the case of CIT v. Express Newspapers - 1994 (206) ITR 443 - while dealing with the provisions of Section 245A relating to the definition of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid judgment of the Hon'ble Court has laid down various prepositions arising out of the discussion in the judgment. The proposition in sub-para (xi) which the learned advocate has referred to, has been made with reference to the right of the assessee to grant of refund. The Hon'ble Supreme Court laid down in this connection that the amended provisions of Section 11B would apply to all pending proceedings notwithstanding the effect that the duty may have been refunded to the petitioner/plaintiff pending the proceeding or under the order of the Court/Tribunal/Authority or otherwise and further that where the refund proceedings have finally terminated in the sense that the appeal period has also expired as on 19th September, 1991 [when the 1991 (Amendment) Act came into operation], they cannot be reopened and/or governed by Section 11B(3) as amended. In short, the Hon'ble Court held that the right to refund as not affected by the amended Section 11B in case where the refund proceedings have finally terminated and it is in this context that the Hon'ble Court referred to the non-expiry of the appeal period. The ratio arising out of this observation, to our mind, does not apply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Advocate on yet another judicial pronouncement of the Apex Court in C.C.Ex, Jaipur v. SPB Ltd. [2002 (146) E.L.T. 254 (S.C.) = CA No. 4972 of 2001], we find that this is quoted in support of the penalty imposable and the quantum thereof in the light of frequent changes in Rule 96ZQ(5). But since the applications are not allowable as they do not satisfy the definition of case under Section 31, the Bench does not find it necessary to go into the aspect of penalty. So also is the case with reference to advocate's reliance on Re : Malt Mftr Pvt. Ltd. - 2002 (143) E.L.T. 700 (Sett. Comm.) and Visen Fabrics - 2001 (137) E.L.T. 1339 (T). 23. We have also considered the plea regarding application of the decision in the case of Delta Paper Mills Ltd. [1995 (77) E.L.T. 544 (A.P.)]. The gist of the decision in this case is that any provisions made in the statute for charging or levying interest on delayed payment of tax must be construed as a substantive law and not adjective law. Interest cannot be charged or levied by way of a supplemental instruction. 24. It will thus be seen that this decision is not applicable to the issue before us. 25. In the net result, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
