9911796707
TMI Blog2008 (6) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER The Court : The subject matter of challenge is the certificate dated February 26, 1999 issued under sub-section (1) of Section 90 of The Finance (No. 2) Act, 1998 determining the amount payable by the petitioner-company to settle this case at Rs. 3,63,920.09P. 2. The fact of the case in a nutshell is this. The respondent no. 3 passed an order dated July 23, 1996 determining an amount of Rs. 4,87,914.58p towards duty and Rs. 2000/- towards penalty payable under the Central Excise Act, 1944. The petitioner preferred an appeal against the aforesaid order before the Appellate Authority on October 31, 1996 together with an application for stay of operation of the order dated July 23, 1996 passed by the respondent no. 3. The Appellate Authority disposed of the above stay application on June 18, 1997 directing the petitioner-company to deposit Rs. 2,39,925.60p on account of the excise duty. The petitioner-company filed an application dated September 18, 1997 before the Appellate authority for modification of that order. It was rejected on November 30, 1998. In the-meanwhile, the Kar Vivad Samadhan Scheme 1998 (hereinafter referred to as the said Scheme) came into force. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be treated as pending. In this case, no amount towards the duty demanded or penalty levied had been paid by the petitioner-company. Therefore, unless such amount was paid, it was not open to the respondent no. 1 to consider the appeal of the petitioner-company as pending at the time of passing the impugned order. Only on account of payment of such amount the appeal could be treated by the respondent no. 1 as pending. In calculating the amount to be deposited by the petitioner-company for settlement of his central excise duties under the Kar Vivad Samadhan Scheme, 1998 the respondent no. 1 had properly considered Rs. 2,39,925.60p. in full and 50% of the rest. Reliance is also placed on the decision of Vijay Prakash D. Mehta v. Collector of Customs reported in 1989 (39) E.L.T. 178 (S.C.). in support of the above submission. 5. Having heard the learned Counsel appearing on behalf of the respective parties and after considering the facts and circumstances of this case, I find that admittedly the petitioner-company preferred an appeal before the Commissioner (Appeals) against the order dated July 23, 1996 passed by the respondent no. 3. Admittedly the Appellate Authority determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. - For the purposes of this section duty demanded shall include,- (i) amount determined under Section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. 8. Upon close scrutiny of the language of the above provision, I find that deposit of the amount which the petitioner-company was required to make as per direction of the Appellate Authority dated June 18, 1997 during the pendency of the appeal was not a condition precedent to admit the appeal. Therefore, I do not find much force in the submissions made on behalf of the respondent that the appeal was not pending at the time of issuing the impugned certificate though the amount was not paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a frivolous defence to the duty so assessed by the Commissioner. The appellant might lose in the appeal. The tribunal admitted their appeal with a pre-condition of deposit. The appellant did not deposit the same so directed by the tribunal in its entirety. It was open for the tribunal to dismiss their appeal. The tribunal did not do so. Hence, on the date of introduction of the scheme and on the date of making of such declaration the appeal was pending as per the record of the said tribunal and such appeal was for the entire amount of duty. On that score the appellant deposited only a sum of Rs. 1,11,072.00. Hence, the rest of the duty must come within the purview of the said scheme. Question of conduct of the appellant would not be a relevant factor to decide the present controversy. Four decisions of the Apex Court were relied on by the appellant : (i) 2003 (154) Excise Law Times, Supreme Court,Page 354 [Union of India v. Charak Pharmaceuticals (India) Limited]. (ii) 1981 Excise Law Times, Supreme Court, Page 679 (Navin Chandra Chhotelal v. Central Board of Excise Customs). (iii) 1989 (39) Excise Law Times, Supreme Court, Page 178 (Vijay Prakash D. Mehta v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
