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2015 (7) TMI 1147 - MADRAS HIGH COURT

2015 (7) TMI 1147 - MADRAS HIGH COURT - 2016 (334) E.L.T. 617 (Mad.) - Plea of the mistake - Compounded levy scheme - 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 - Held that:- Tribunal in the or .....

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l in dismissing the appeal and the subsequent miscellaneous application filed by it, the assessee is before this Court by filing the present appeals. This Court, vide order dated 7-7-2009, while admitting the appeals, framed the following substantial questions of law for consideration :- (1) Whether 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 bef .....

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at he is not pressing the second substantial question of law. Accordingly, this Court, in the present appeals is dealing only with the first question of law. 3. The facts, in a nutshell, are as hereunder :- The appellant is engaged in the manufacture of re-rolled products falling under Chapter sub-headings 7211.11, 7214.90 and 7216.10 of the Central Excise Tariff Act. The appellant is in possession of valid Central Excise Registration Certificate. From 1-9-97 to 31-3-2000, the clearance of .....

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the Department was directed to verify the declaration filed by the appellant with the help of Technical Experts/Chartered Engineers and submit detailed report. However, no report has been submitted and the same is not disputed. On 2-3-2000, the appellant requested the Department to refix the ACP stating that the declaration already filed by the assessee contains two errors/mistakes, viz., mentioning of wrong type of furnace and mistake in the formula. The plea of the appellant is that the type o .....

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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 to the change in the formula, the ACP should be revised on the basis of the appropriate notification. Despite the above, show cause notice was issued demanding duty and after adjudication, the same was confirmed against which the assessee preferr .....

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e appellant submitted that the type of furnace is only Batch Type and the factor W is 1.2 as against 2.466 declared on 6-9-97. If any Technical expert verifies the same, the liability will be reduced considerably. These aspects have not been considered by the adjudicating authority and the Appellate Authority. Not even a word was mentioned about this plea in the order. Thus, the order is one without properly considering the relevant issues. 6. However, the Tribunal decided the issue primari .....

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ee 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 not been di .....

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rayed that no interference is called for with the order passed by the Tribunal. 10. Heard the learned counsel appearing for the appellant and the learned standing counsel appearing for the Department: and perused the materials available on record as also the notifications on which reliance was placed by the parties. 11. From a reading of the order of the Tribunal, it is evident that the issue, which was considered by the Tribunal was whether the Annual Capacity of Production (ACP) of t .....

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bsequently 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 .....

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d 2-4-98. 3. From the above it is very clear that the ACP was fixed provisionally with effect from 1-9-1997 vide office letter dated 12-9-97 and subsequently fixed finally by the above-mentioned letter of April, 1998. Therefore, there is no merit in this appeal. We accordingly uphold the impugned order and reject the appeal. 12. Against the abovesaid order, a miscellaneous application was filed by the assessee to correct, the error apparent on record, insofar as the Notification No. 45 .....

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idered the rival submissions. The only point argued before the Bench during the hearing of the appeal, was that the demand was premature as the ACP had been fixed provisionally. No plea was raised before the Bench regarding the 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 .....

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