TMI Blog2014 (1) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... is greater. Sub-rule 3 of Rule 96ZP starts with a non-obstante clause and in fact, it is a facility given to the manufacturer, by which, the manufacturer, may, in the beginning of each month from 1st day of September, 1997 to 31st day of March, 1998 or any other financial year, pay a sum equivalent at the rate of ₹ 300/- multiplied by the annual capacity in metric tonnes. We term this as a facility in the light of Clause I(a) to Rule 96ZP, which mandates the amount to be paid at the rate of ₹ 400/- per metric tonne by 31st day of March, 1998. Imparting the elements of the scheme of tax administration/recovery under Section 11A to a specially compounded levy scheme as provided under Rule 96ZP, would be wholly arbitrary and it would disturb the very functioning of the special scheme and the time limit prescribed under the special scheme, cannot be done away with by the time limit specified under the normal procedure under Section 11A - assessee had come under the compounded levy scheme with effect from 1997 and when they switched over to this, the credit lying unutilised, be in the inputs or in the final products, lapsed in terms of sub-rule (17) of Rule 57F - assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority by order dated 3.10.2001, confirmed the proposal made in the notices dated 10.6.1998 and 18.5.1999. 3. Challenging the said order, the appellant preferred appeal to the Tribunal. Before the Tribunal, it appears that the appellant engaged a Consultant to represent them; but, the Consultant did not appear before the Tribunal on more than one occasion and therefore, the Tribunal proceeded to consider the matter on merits by perusing the records and hearing the departmental representative. The Tribunal by order dated 13.2.2007, confirmed the order passed by the Original Authority. Aggrieved by the same, the assessee has put forth this appeal, which has been admitted on the following substantial questions of law: "a) Whether the Tribunal was justified in refusing to accede to the appellant's request for adjournment on the ground that the appellant was all along represented by a Company Secretary and not by a Consultant? b) Whether the Tribunal was justified in upholding the demand contrary to Section 11A of the Central Excise Act, 1994 on the ground that Rule 96ZP of the Central Excise Rule, 1944 was contained where no period of limitation is prescribed? c) Whether Rule 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has stopped production from 1.4.1998, no intimation was given to the department and therefore, the assessee cannot plead that they are not liable to pay duty beyond 1.4.1998. 7. Learned Standing Counsel further submitted that on 27.7.1998, the assessee had written to the Superintendent of Central Excise, Pappireddipatty, stating that they are proposing to start production program by 3.8.1998 onwards and they have stopped production from 1.4.1998 and this letter clearly shows that they have not intimated the Department immediately after stopping production and the procedure required to be followed, has not been followed. On the above submission, the learned Standing Counsel seeks to sustain the order passed by the Tribunal. 8. The first issue to be considered, is as to whether Section 11A of the Act has any application to the case on hand, in the light of the fact that the assessee has availed the benefit of a specially compounded levy scheme as envisaged under Rule 96ZP of the Rules. Learned Counsel for the assessee would submit that the show cause notices have been issued under Section 11A of the Act. A reading of the show cause notices issued, would make it clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an example was cited with regard to the Modvat Scheme and was further held that even in that particular scheme, Section 11A of the Act had no application with regard to the time limit in the administration of that scheme. The Hon'ble Supreme Court further took note of the decision in the case of Commissioner of Central Excise Customs V. Venus Castings (P) Ltd. (supra) and held that it has squarely laid down the principle that compounded levy scheme is a separate scheme altogether and the assessee opting for the scheme, is bound by the terms of that particular scheme and Section 11A of the Act has no application for recovery under the different schemes. 9. On a perusal of Rule 96ZP of the Rules, it is evidently clear that it is a procedure of self-assessment where the manufacturers of hot re-rolled products falling under the different sub-headings in the Central Excise Tariff Act, are bound to debit the amount calculated at the rate of Rs.400/- per metric tonne at the time of clearance from the factory in the account-current maintained under Rule 173G(1) of the Central Excise Rules, 1944, and the duty liability is to be complied as detailed in Clauses I and II under Rule 96ZP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific contention of the assessee that they stopped production activities from 1.4.1998. When the assessee filed an appeal before the Tribunal against the order in original, the department had given written instructions to the departmental representative who appeared before the Tribunal. In the said instructions dated 2.6.2003, there is a reference to the Range Officer's report. A reading of the said report shows that the appellant has stopped their production on and from 1.4.1998 and the Unit is defunct since then. This has been further reiterated in the Range Officer's report, stating that they have not reopened their Unit thereafter (2003) and the Unit has incurred an accumulated loss of Rs.4,45,97,581/- as on 31.3.2002 as per the balance sheet filed with the Income Tax Department. There is no challenge to the Range Officer's report or there is any contention raised on behalf of the department, that the finding of fact as recorded in the said report, is either false or incorrect. From a perusal of the order in original, it is seen that the Original Authority has recorded a finding that HT power supply was disconnected with effect from 12.6.1998; but, however, rejected the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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