9911796707
TMI Blog2007 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The assessee had applied under Rule 96ZNA of the Central Excise Rules, 1944 on 5-5-2001, seeking to avail special procedure in respect of the period from 1-5-2001 to 31-3-2002 which enabled the assessee to avail the provisions of Section "E-XA" which was inserted in the Rules by the amendment made by the Central Government in exercise the powers conferred by Section 3 by the said Act by enacting the Central Excise 5th Amendment Rules 2001, which came into force from 1-3 2001. By applying the special procedure, the assessee became entitled to avail the provisions of Section E-XA "on provisional basis", as provided by sub-rule (2) of Rule 96ZNA. The assessee accordingly paid Central excise duty amount at the rate of Rs. 3 lacs per chambe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that month under Rule 96ZNA. As regards delay, it was held that in June 2001, the assessee was paying the duty under the belief that it was required to pay the same on compounded levy basis and, therefore, no penalty was imposable on the assessee. 4. The Commissioner (Appeals) was of the opinion that once it is held that duty was paid on ad valorem basis, short payment of duty of Rs. 4,30,658/- was worked out for the clearances effected in the month of June, 2001. It was contended before the Commissioner (Appeals) by the assessee that this amount ought to have been adjusted from the duty found to have been paid in excess in the other months between May & September 2001 under Rule 96ZNA, by the appellant. The Commissioner (Appeals) held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the applicability of Rule 96ZNA for the period May 2001 to September 2001 was Rs. 1,67,61,584/- while the duty that was found to be payable under Section 4 of the Act was worked out at Rs. 1,53,62,657/- and thus the appellant was in fact entitled to refund. The learned Counsel however, fairly pointed out that the said refund claim which was separately made by the applicant though sanctioned, was not paid to the appellant on the ground that the incidence of that duty amount was passed on to their customers, as found by the Tribunal in Excise Appeal No. 3579 of 2003 decided on 25-11-2004. According to the learned Counsel, the excess payment made in May 2001 was required to be adjusted towards the deficit found in June 2001. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... format, by the 20th May, 2001. If such application made by the 20th May, 2001, is granted by the Commissioner of Central Excise, the facility to avail the provisions under this section shall be deemed to be available from 1st May, 2001. Pending grant of such application by the Commissioner of Central Excise, the independent textile processor may avail the provisions of section on a provisional basis. However, if the application is rejected by the Commissioner of Central Excise, then he shall not be eligible to avail the provisions of this section from the 1st May, 2001 and he shall discharge the duty liability as per the provisions contained elsewhere then in this section and the duty, if any, paid under the provisions of this section or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability by paying duty in accordance with Rule 96ZNC, as per which duty was to be paid according to such rate and subject to conditions and limitations laid-down under the said rules. The rate of duty fixed and notified from time to time was payable having regard to the average production of the goods in question per month per chamber of a hot-air stenter installed for processing of the textile fabrics or processed textile fabrics of cotton etc. specified in Rule 96ZNA(1). Under sub-rule (1) of Rule 96ZNC read with the relevant notification the duty was required to be debited by the assessee in the account current maintained under Rule 173G(1) of the said rules. As provided by sub-rule (3) of Rule 96ZNC, fifty percent, of the sum payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the compounded levy scheme. Thus, when the application of the appellant made under Rule 96ZNA came to be rejected on 1-10-2001, he could not have been made liable for not filing the returns till that date in the context of the provisions of Section 4, because, he had filed the returns in the context of the provision of Rule 96ZNA read with Rule 96ZNC which it was entitled to do by virtue of their provisional application as envisaged by sub-rule (2) of Rule 96ZNA of the said rules. Since on rejection of the application, the liability to pay duty as it existed under the provisions other than under the provision of Rules 96ZNA and 96ZND revised w.e.f. 1-5-2001, the appellant became liable to pay duty on the basis of the goods manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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