9911796707
TMI Blog2008 (12) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... main issue. 2. Heard both sides. 3. Relevant facts are as follows : (a) The appellant was manufacturing alloy steel up to June, 1999 and from July, 1999 started manufacturing non-alloy ingots which are governed by compounded levy scheme under Section 3A with effect from 1-9-1997. The basic dispute of determination of annual capacity of production and consequent demand of duty relates to the period from July, 1999 to March, 2000. (b) The Commissioner determined the annual capacity of production at 12,800 MT by his order dated 3-11-1999 which was, on request of the appellant was set aside and matter remanded by the Tribunal by order dated 30-6-2000. Subsequently, the Commissioner in pursuance of the remand order dated 30-6-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2-2001 and 16-4-2001 before the Tribunal were dismissed and appeals against the orders of the Tribunal have been dismissed by the Hon ble Supreme Court vide their order dated 17-7-2008. 4. Learned advocate for the appellant took us through the list of dates and events spanning over a decade and made the following submissions : (a) They discharged duty liability on the basis of actual production from the period from July, 1999 onwards; the order of the original authority dated 3-11-1999 was set aside by the Tribunal by order dated 30-6-2000 and redetermination took place by order dated 6-2-2001, and thus no valid determination was done till 6-2-2001. (b) The duty demand confirmed vide order dated 16-4-2001 relying on the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also submits that in the de novo proceedings also, re-determined annual capacity is the same as originally determined annual capacity and the same apply to the disputed period namely, July, 1999 to March, 2000. (b) There was no justification for the appellant in not paying the duty after the annual capacity of production was re-determined on 6-2-2001. At any rate, when the duty was confirmed on 16-4-2001, the said date could be the outer limit by which the appellant was required to pay the duty due. (c) At no stage, in any other proceeding challenging the determination of annual capacity of production or confirmation of duty, the Tribunal or the Supreme Court has given the decision in favour of the appellant. (d) In ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be objection only when penal provision which was not in force during the time of operation is sought to be invoked based on the amendment. 7.1 We have carefully considered the submissions from both sides. During the period when the multiple proceedings were going through several significant changes in law has happened. Section 3A of the Central Excise Act based on which the compounded levy scheme was introduced for non-alloy ingots has been deleted. Subsequently, vide Section 131 of the Finance Act, 2001, Section 38A was added to the Central Excise Act with a view to save certain action already taken and in progress. 7.2 In the present case, it is to be noticed that the determination of annual production capacity done vide order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question in further detail as we find that vide Section 131 of the Finance Act, 2001, Section 38A was added to the Central Excise Act, 1944, to the following effect :- 38A. Effect of amendments, etc., of rules, notifications or orders.-Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not- (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, notification or order so amended, repeale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by learned DR that all liabilities including liability of penal action cannot be wiped out for the period during which the scheme was in operation is acceptable. 7.5 In the present case, the delay in payment of tax from 16-4-2001 is in clear violation of the rules relating to compounded levy framed under Section 3A of the Central Excise Act and penalty is imposable under Rule 96ZO of the erstwhile Central Excise Rules. 7.6 Once the delay in payment of dues determined under compounded levy scheme is confirmed, in terms of decision of the Hon ble Supreme Court of India in the UOI v. Dharamendra Textile Processors cited supra, the penalty is imposable and mens rea is not a necessary ingredient and that there is no scope for any discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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