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2015 (11) TMI 368 - CESTAT NEW DELHI

2015 (11) TMI 368 - CESTAT NEW DELHI - TMI - Duty demand under sub-rule (3) of Rule 96ZO of Central Excise Rules, 1944 - Compounded levy scheme - Held that:- According to the appellant, the letter was sent Under Postal Certificate (UPC) and the receipt thereof is not traceable. Under the provisions of Rule 195 of the Indian Post Office Rules , 1933 'Certificate of Posting' is granted to the public to afford an assurance that letters and other articles for which no receipts are granted by the Pos .....

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ot give any presumption that the same is served upon the addressee. In this case, the respondent has not only disputed receipt of the letter but also its veracity i.e. photocopy of the letter produced by the appellant. On analyzing, the facts, evidence and the law placed before us, we are not able to hold that the letter dated 26.5.1998 had reached the office of the Commissionerate. Therefore, the contention of the appellant that they had informed the Department by letter dated 26.5.98 stating t .....

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ut of the scheme for the disputed period, after exercising his option to pay duty under sub-rule (3) of Rule 96ZO. Therefore, the duty demand of ₹ 7,26,352/- is sustainable. - However, penalty is set aside - Decided partly in favour of assessee. - Appeal No. E/1727/2006-EX[DB] - Final Order No.51798/2015 - Dated:- 9-6-2015 - Mr. Rakesh Kumar, Member (Technical) And Smt. Sulekha Beevi C.S., Member (Judicial) For the Petitioner : Shri S.C.Jain, Advocate For the Respondent: Shri R.K.Gupta, DR .....

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otification No.43/97-CE (NT) dt.30.8.97 issued under section 3A of the Central Excise Act, 1944 read with Rule 96ZO chargeable to duty under compounded levy scheme. The appellant vide their letter dt.7.8.97 opted for compounded levy scheme as provided under the above provisions of law. On this request, the Commissioner of Central Excise, Jaipur-I determined the annual capacity of the furnace of the appellant as 9600 MTs and informed the same to the appellant vide letter dated 22.10.1997. On the .....

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tipulated period. Remaining amount of ₹ 13,83,648/- was deposited after expiry of period provided under sub-rule (3) of Rule 96ZO. Further, an amount of ₹ 7,26,352/- was outstanding towards duty liability for the period September, 1998 to January, 1999. 3. A show cause notice dated 25.3.1999 was issued to the appellant to show cause as to why the following sums should not be recovered from them: (a) an amount of ₹ 7,26,352/- towards central excise duty for the period September, .....

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the department vide their letter dated 26.5.1998 that they have revoked the option to pay duty on the basis of annual production capacity and opted to pay duty on the basis of actual production. After adjudication, the duty demand was confirmed and penalty was also imposed under Rule 209 by the Joint Commissioner vide Order-in-Original dated 14.9.99. It was therein held that no letter of request dated 26.5.1998 of the appellant had reached the office of the Commissioner. The action against the a .....

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bunal allowed the stay application waiving pre-deposit. This Tribunal vide Final Order dated 17.7.2001 remanded the matter to the Commissioner to consider the same in de novo adjudication with the direction to look into the issue whether the contention that letter dated 26.5.98 was sent by the appellant was genuine or not. Thereafter the Commissioner (Appeals) has passed this impugned order upholding the demand of duty. Commissioner (Appeals) held that on enquiry about the letter dated 26.5.98, .....

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in the letter that they wished to discharge their duty liability on actual production under section 3A (4) of the Central Excise Act. That, therefore, the appellant is not liable to pay duty on annual capacity of production as determined by the Commissioner. 7. Against this, Shri R.K.Gupta, learned DR submitted that no such letter as contended by the appellant was received in the office of the Commissionerate. He also challenged the veracity of the photocopy of the letter produced by the appell .....

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pellant was received in the office of the Commissionerate. This is a question of fact and the burden lies purely upon the appellant to establish the same. According to the appellant, the letter was sent Under Postal Certificate (UPC) and the receipt thereof is not traceable. Under the provisions of Rule 195 of the Indian Post Office Rules , 1933 'Certificate of Posting' is granted to the public to afford an assurance that letters and other articles for which no receipts are granted by th .....

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harashtra vs. Rashid B.Mulani reported in 2006 (1) SCC 407, the apex court had occasion to consider reliability of letter issued under UPC. The Apex Court in para 14 of its judgement has held as under:- 14. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the post office. But when a mere certificate of posting i .....

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se. In the absence of such record, a certificate of posting may be of very little assistance, where the dispatch of such communication is disputed or denied as in this case. 10. In fact, this Tribunal had earlier remanded the matter to the Commissioner (Appeals) affording a further opportunity to the appellant to adduce evidence to establish whether the letter as contended was received in the office of the Commissionerate or not. A person can be said to receive a letter when it is delivered/serv .....

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epartment by letter dated 26.5.98 stating that the appellant opted out of the compounded levy scheme, does not find favour with us. 11. For argument sake, even if we assume that such letter was sent, it would be of no assistance to the appellant. There is nothing contained in sub-rule (3) of Rule 96ZO which permits the appellant to make a request to opt out of the scheme. The Apex court in Venus Castings Pvt.Ltd has held as under;- 10. The schemes contained in Section 3A(4) of the Act and Rule 9 .....

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The claim by the respondents is a hybrid procedure of taking advantage of the payment of lumpsum on the basis of total furnace capacity and not on the basis of actual capacity of production. Such a procedure cannot be adopted at all, for the two procedures are alternative schemes of payment of tax. 12. In the above judgement, it was observed by the Apex Court that in taxation measures composition schemes are not unknown and when such scheme is availed of by the assessee it is not at all permissi .....

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