9911796707
TMI Blog2008 (12) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the same main issue. 2. Heard both sides. 3. Relevant facts are as follows : (a) The appellant was manufacturing alloy steel up to June, 1999 and from July, 1999 started manufacturing non-alloy ingots which are governed by compounded levy scheme under Section 3A with effect from 1-9-1997. The basic dispute of determination of annual capacity of production and consequent demand of duty relates to the period from July, 1999 to March, 2000. (b) The Commissioner determined the annual capacity of production at 12,800 MT by his order dated 3-11-1999 which was, on request of the appellant was set aside and matter remanded by the Tribunal by order dated 30-6-2000. Subsequently, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st has been recovered in March, 2008 and April, 2008. (g) The appeals filed by the party against the orders of Commissioner dated 6-2-2001 and 16-4-2001 before the Tribunal were dismissed and appeals against the orders of the Tribunal have been dismissed by the Hon'ble Supreme Court vide their order dated 17-7-2008. 4. Learned advocate for the appellant took us through the list of dates and events spanning over a decade and made the following submissions : (a) They discharged duty liability on the basis of actual production from the period from July, 1999 onwards; the order of the original authority dated 3-11-1999 was set aside by the Tribunal by order dated 30-6-2000 and redeterminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 determined the annual capacity having been passed validly, the appellant was required to pay the differential duty as on 31-3-2000/1-4-2000, even though the order has been set aside and matter was remanded for fresh consideration by the Commissioner. He also submits that in the de novo proceedings also, re-determined annual capacity is the same as originally determined annual capacity and the same apply to the disputed period namely, July, 1999 to March, 2000. (b) There was no justification for the appellant in not paying the duty after the annual capacity of production was re-determined on 6-2-2001. At any rate, when the duty was confirmed on 16-4-2001, the said date could be the outer limit by which the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has held that even by omission of Section 3A, liability of the assessee was not wipe out, it should be interpreted to include all liabilities including penal liability. 6. Learned DR submits that the intention of the amendment is to protect all liabilities including penalty liability which was existing during the relevant period. There could be objection only when penal provision which was not in force during the time of operation is sought to be invoked based on the amendment. 7.1 We have carefully considered the submissions from both sides. During the period when the multiple proceedings were going through several significant changes in law has happened. Section 3A of the Central Excise Act based on which the compounded le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties. However, we find that Hon'ble High Court of Punjab and Haryana in the case of Shree Bhagwati Steel Rolling Mills v. CCE, Chandigarh cited supra have held that the omission of Section 3A does not wipe out the liability of the assessee. The relevant portion of the order of the Hon'ble High Court is reproduced below : "20. We however, need not go into the question in further detail as we find that vide Section 131 of the Finance Act, 2001, Section 38A was added to the Central Excise Act, 1944, to the following effect :- 38A. Effect of amendments, etc., of rules, notifications or orders.-Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is, accordingly, answered against the petitioner." 7.4 In view of the above, we hold that the all liabilities/obligations including liability for penal action are protected. In other words, if a refund claim was pending, the same has to be processed applying the provisions of Section 3A and the relevant rules during the relevant period. Similarly, a demand proceedings and further appellate proceedings arising out of the demand stands protected. The view submitted by learned DR that all liabilities including liability of penal action cannot be wiped out for the period during which the scheme was in operation is acceptable. 7.5 In the present case, the delay in payment of tax from 16-4-2001 is in clear violation of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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