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TMI Blog2015 (7) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the plea of the mistake pointed out in ROM application, raised in the grounds of appeal and agitated before the authorities, can be rejected by the Tribunal stating that such point was not argued before it? (2) Whether the Assistant Commissioner of Central Excise is competent to initiate proceedings for the recovery of any amount payable under compounded levy scheme when compounded levy scheme itself a separate code by itself and no machinery provided for recovery under the scheme?" 2. Though the appeals have been admitted on the above two substantial questions of law, however, at the time of final hearing of the appeals, learned counsel appearing for the appellant/assessee submitted that he is not pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only batch type furnace, for which the factor 'W' is 1.2 Kg./Mtr. as against 2.47 Kg./Mtr. as stated earlier. This request of the appellant was acknowledged by the Department on 6-3-2000, however, no action was taken. This letter was followed by subsequent letter dated 29-3-2000. This request was made by the appellant on the premise that for the period in dispute, Notification No. 32/97-C.E. (N.T.), dated 1-8-97 in which the ACP is fixed on the parameters of 'd' - Diameter 300 to below 350 and 'W' at 2.47 Kg./Mtr., whereas the correct Notification No. 45/97-C.E. (N.T.), dated 30-8-97, provides for fixing the ACP on the basis of 'd' - Diameter between 261 to 310 and the value of 'W' is taken as 1.200 Kg./Mtr. Therefore, it was urged that due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .), dated 30-8-97, which deals with the change in parameters, rectification application was filed, which was dismissed by the Tribunal holding that except the plea of provisional ACP fixation, no other plea was taken. Aggrieved by the said orders, the assessee is before this Court by filing the present appeals. 8. Learned counsel appearing for the appellant submitted that the invocation of Section 11A to recover the amount due under the Compounded Levy Scheme is not permissible, since the compounded levy scheme, by itself, is a separate order. It is further submitted that the Tribunal failed to consider the non-filing of the expert opinion with regard to the furnace and has erroneously got carried away, in spite of the facts having no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-9-97 and subsequently fixed finally by letter dated April, 1998. For better clarity, the relevant portion of the order is quoted hereinbelow :- "2. We have carefully considered the submissions of both sides and perused the communication dated 3-4-1998. The communication reads as under :- ''Please refer to this office letter of even No. dated 12-9-97 filing the Annual Capacity of Production as 14,187.978 MT., provisionally with effect from 1-9-97. I am directed to inform that the final Annual Capacity of Production has been finally fixed by the Commissioner as 14,187.978 MT, with effect from 1-9-1997 and duty has to be paid at the applicable rates for the period from 1-9-97 to 31-3-98. Delayed payment after 31-3-98 will attract an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he change in parameters. Therefore, no error let alone an error apparent arise from the record in the Tribunal's final order. The ROM application is accordingly dismissed." 13. However, this Court finds that the above finding of the Tribunal in the original order as also in the ROM application is on the wrong premise that no plea has been raised by the assessee with regard to change of parameters and the applicability of notification dated 30-8-97. From a perusal of the grounds of appeal filed before the Tribunal, more particularly, para 5, which we have extracted above, it is evident that a substantial ground has been raised before the Tribunal with regard to the change of parameters and the applicability of notification dated 30-8-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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