9911796707
TMI Blog2011 (1) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ring was concluded. 3.1 The relevant facts, in brief, in respect of Appeal No. E/716/06 are as follows :- The Appellant was provisionally required to pay duty of Rs. 72,00,000/- p.a. It was observed that during the financial year 1998-99, the appellants had paid duty of an amount of Rs. 28,90,721/- and for the financial year 1999-2000, they had paid an amount of Rs. 24,54,612/-. Thus, there were short payment of duties to the extent of Rs. 43,09,279/- and Rs. 47,45,388/-, respectively. Accordingly, show cause notices were issued to the appellant for payment of duties short paid, alongwith interest and for imposition of penalties. In the mean time, the appellant approached the Commissioner, Central Excise for re-determination of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. Thus, there was short levy of duty of Rs. 89,82,644/-. Show cause notices were issued to the appellants for payment of this short paid duty, alongwith interest and for imposition of penalty under the Rules. The matter was taken up in adjudication. The appellants, in the meanwhile, approached the Commissioner for re-determination of the capacity based on annual production. Considering this, the Commissioner, Bhopal redetermined the capacity for the two financial years. After taking into account the reduced liability, the original authority came to the conclusion that the appellants was required to pay duty of Rs. 50,94,212/-. Thus, there was a shortfall in payment of duty of Rs. 21,722/- for the period ending 31st March, 1999 and Rs. 3,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of Section 3A only reference is of rate of duty specified under sub-section (3) - Not the manner of the collection. Therefore, the normal procedure for payment of duty is applicable, i.e. the duty is payable at the time of clearances of the goods. (3) The para 1 of Rule 96ZO also stipulates that a manufacturer shall debit amount calculated @ of Rs. 750/- per MT at the time of clearances........................ (4) That since clause (a) of part (II) of Rule 96ZO(1) is not applicable in the present case, therefore penalties are not sustainable under Rule 96ZO(1)(II)(c)(i). (5) That sub-section (5) of Section 3A reads as under - "Where the Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout any discretion and without considering extent of delay and circumstances are held ultra vires of the Act and the Constitution. 8. I have carefully considered the submissions from both sides and perused the records. The dispute relates to imposition of penalty in terms of 96ZO in respect of delay in payment of certain amounts during the year 1998-99 and 1999-2000. The dispute revolves round the Section 3A and the Rules made thereunder. Therefore, it will be appropriate to reproduce the provisions of Section 3A of the Central Excise Act, 1944 which reads as under :- "Section 3A. Power of Central Government to charge Excise duty on the basis of capacity of production in respect of notified goods. - (1) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed. (4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility was provisionally determined in terms of sub-section (2) of Section 3A and accordingly it was held that the appellant was required to pay a differential duty of Rs. 43,09,279/- for the year 1998-99 and differential duty of Rs. 47,45,388/- for the year 1999-2000. However, the duty liability was redetermined based on letter dt. 3-5-2009 of the appellants by the Commissioner vide order dated 22-3-2005 according to which, the differential duty payable became only Rs. 95,147/- for the year 1998-99 and Rs. 82,535/- for the year 1999-2000. Similarly, in respect of appeal No. E/1623/06, the differential duty payable originally determined which becomes Rs. 21,722/- subsequent to re-determination vide order dated 7-10-2004 on the basis of clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
