2016 (2) TMI 252 - AT - Central Excise

Duty under the Compounded Levy Scheme confirmed - refusal of payment of duty under normal scheme - Held that - We hold that under the facts and circumstances, the appellant had not made/expressed option for paying tax for the financial year 1998-99 under the compounded levy scheme. As such, no tax can be demanded under the provisions of Section 3A read with Rule 96ZP(3). We accordingly set aside the impugned order on the issue of abatement also. We hold in favour of the appellant that as proceedings were pending on 11.5.2001, the proceedings stood abated, following the rulings of Hon ble Gujarat High Court in the case of Krishna Processors 2012 (11) TMI 954 - GUJARAT HIGH COURT .

Summary

Issues:
- Refusal of payment of duty under normal scheme and confirmation of duty under Compounded Levy Scheme
- Determination of duty liability for the period June 1998 to November 1998
- Appellant's challenge regarding the option to pay duty under Compounded Levy Scheme for the financial year 1998-99
- Abatement of proceedings under Compounded Levy Scheme post omission of Section 3A

Analysis:

1. The appellant contested the order-in-original refusing payment of duty under the normal scheme and confirming duty under the Compounded Levy Scheme for the period in question. The appellant had initially opted for the Compounded Levy Scheme for the financial year 1997-98, but discrepancies in duty payment arose for the period June 1998 to November 1998, leading to a demand for unpaid duty. The appellant disputed this demand, claiming they did not opt for the Compounded Levy Scheme for the subsequent financial year 1998-99.

2. The Tribunal, in an earlier order, remanded the matter to the Commissioner for a fresh decision, emphasizing the need for a determination regarding the appellant's option to pay duty under the Compounded Levy Scheme for the year 1998-99. The subsequent impugned order-in-original reiterated the duty liability under the Compounded Levy Scheme, citing the appellant's request for re-determination of duty due to machinery changes as evidence of continued participation in the scheme.

3. The appellant argued that their lack of a specific option to pay duty under the Compounded Levy Scheme for 1998-99 should preclude the assumption of continued participation by the Commissioner. They further contended that proceedings under the Compounded Levy Scheme abated post the omission of Section 3A without a saving clause, citing legal precedents supporting their position, including the decision in Krishna Processors vs. UOI.

4. The Revenue, however, relied on the Supreme Court's judgments emphasizing the binding nature of the option once exercised under the Compounded Levy Scheme. They argued against the appellant's interpretation of abatement post the omission of relevant legal provisions, citing precedents that upheld the sanctity of the chosen scheme once opted for by the assessee.

5. The Tribunal, after considering the arguments, held in favor of the appellant, ruling that the appellant had not expressed an option to pay duty under the Compounded Levy Scheme for the financial year 1998-99. Consequently, they set aside the impugned order, acknowledging the abatement of proceedings as per the legal principles established in the Krishna Processors case. The appellant was granted relief, and the appeal was allowed, entitling them to consequential relief as per law.