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TMI Blog2002 (9) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... No. IV/16/171/98 CEX1 dated 20-4-2000. On verification of the RT 12 return filed by the applicant for December, 1999, it was found that the applicant had paid a duty of Rs. 7,91,667/- only as against the duty liability fixed and referred to above. After issue of a SCN, the ADC of the CEX confirmed the demand for Rs. 2,91,666/- in his Order No. 2/2001-ADJN(CEX) dated 20-1-2001, under erstwhile Rule 96ZO and also ordered payment of interest under erstwhile Rule 96ZO (3) of the CER, 1944. In his further Order No. 11/2002 dated 3-5-2002 he had imposed a penalty of Rs. 2,91,666/- under proviso to the erstwhile Rule 96ZO (3) of the CER, 1944. The applicant has filed appeals against both the orders which are reportedly pending. In the meanwhile, the applicant has filed the settlement application in relation to the appeals pending before the Commissioner, Customs and Central Excise (Appeals), Hyderabad. 2. In the Settlement application, while contesting the liability to pay the duty of Rs. 2,91,666/- on the ground that one of the furnaces in the factory was closed between 27-11-99 and 19-12-99 on account of break down of the transformer, the applicant has submitted that he had written to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings fall within the definition of case as referred to above. Again, as per sub-section (1) of Section 32E of the CEA, 1944, an assessee may at any stage of a case, make an application for settlement of the case. Hence, the application filed, when the matter is pending before the Commissioner (Appeals), can be entertained provided it satisfies the other conditions. Even though the Commissioner has fixed the monthly duty liability under the Compounded Levy Scheme, the applicant had in fact paid only Rs. 7,91,667/- as against Rs.10,83,333/- per month. In fact the demand came to be issued on scrutiny of the RT 12 for the month of December, 99. The applicant s contention for the short payment was on the ground that consequent on shut down of one of the furnaces (furnace-II) in the factory, he had sought redetermination of the capacity of the said furnace II. In fact, he has also filed a declaration seeking such redetermination on the ground that the furnace II was in break down condition. The first intimation was on 27-11-99 and on 19-12-99 the applicant had written to the Respondent filing a revised declaration and informing that they were resuming production in the induction fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not less than 7 days. In this case, it appears that one of the furnaces remained shut down and under the impression that the abatement of duty was available, the applicant appears to have not discharged the entire duty liability for the month of December, 1999. This is more evident from the fact that the applicant has sought re-determination of the capacity of the production of the furnace II which ceased production during the period 27-11-99 to 19-12-99. The decisions of CEGAT relied on by the applicant referred to closure of the unit and not to closure of one of the furnaces in the factory. In the RT 12 return, the applicant has disclosed and discharged the duty liability of Rs. 7,91,667/- only. In the settlement application, the applicant has for the first time disclosed and come forward to pay the balance amount of duty with a view to avoid multiple proceedings. The duty amount remains unpaid from December, 99 and the litigation has been going on. The Bench therefore finds that by admission of this application, the disputed amount could be collected thus, bringing an end to the continuing litigation. Accordingly and since the other conditions under sub-section (1) of Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Rules, 1944 and Induction Furnace Annual Capacity Determination Rules, 1997 applies, duty is levied and collected in the form of a compounded levy. The manufacturer has to furnish even before commencement of the year/production, information relevant for determination of annual capacity of production of his unit based on which information, and further enquiries where required, the Commissioner of Central Excise determines the annual capacity of production of the factory by way of an order and intimate to the manufacturer. The said order also determines and conveys the duty liability of the manufacturer in monetary terms, with reference to the annual capacity of production determined. Therefore, in such cases, the manufacturer discloses right in the beginning and in advance his duty liability in terms of relevant parameters, based on which liability in monetary terms is also worked out without reference to actual commencement of production and clearance by the manufacturer. 3. From the facts of the instant case it is clear that the applicant had opted for discharge of duty under compounded levy system under the aforesaid Section 3A and had furnished material facts require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 96ZP of CER, 1944, the applicant had furnished requisite parameters of the machinery which form the basis of the duty liability. The applicant has not changed these parameters in the present application to the Bench, but has merely sought for permission to discharge duty as laid down under Rule 96ZP(1) of the CER. Hence, it is a request to allow discharge of duty under a different scheme and is not a disclosure of additional duty liability, per se, or disclosure of any different set of parameters affecting their duty liability under the scheme under which they had earlier opted to discharge duty and which option has been accepted by the Revenue. The Settlement Commission is not the forum to address for such a change over in the scheme to discharge duty . Accordingly, following the ratio in the said decision, the instant application also deserves to be rejected and cannot be allowed to be proceeded with, even without going into the merits of the applicant's request before the Commissioner to re-determine his ACP and consequential duty liability in view of the non-functioning of the furnace. 6. Accordingly, the application merits rejection in terms of Section 32F(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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