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TMI Blog2010 (4) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on 29th of July 2004 by Commissioner (Appeals), Ludhiana. By the impugned order, the Commissioner (Appeals) modified the order passed by the Adjudicating Authority. By the said order the Adjudicating Authority had ordered recovery of Rs. 2,00,000/- (Rupees Two Lakhs) being the outstanding amount out of the total amount of duty of Rs. 10,66,666/- along with interest @ 18% and imposition of penalty of equal amount i.e. Rs. 10,66,666/-. The Commissioner (Appeals) has reduced the penalty amount to Rs. 2,00,000/-. 4. The assessee who is the appellant in appeal No. 5619 of 2004 and the respondent in appeal No. 5352 of 2004 were engaged in manufacture of M.S. Ingots classifiable under Chapter sub-heading 7206.90 of the Central Excise Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 2.6 M.T. instead of 3.2 M.T. The said request came to be rejected on 19th February, 1998. However, having realised that the order dated 14th October, 1997 would be subjected to review by the Appellate Authority, in order to invoke the said remedy the appellants withdrew the writ petition filed in the Hon'ble Punjab & Haryana High Court on 23rd April, 1999. 6. The assessee, however, filed another writ petition in Hon'ble Punjab & Haryana High Court under writ petition No. 17388 of 1999 and therein by interim order dated 15th December, 1999 sought direction to the Commissioner to re-determine the duty liability on the basis of actual production in the factory of the assessee. The Apex Court at that time was seized with the matter involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo procedures are alternative schemes of payment of tax......Therefore, it is made clear that the manufacturers, if they have availed of the procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3A(4) of the Act which is specifically excluded......On the reasoning adopted by us and bearing in mind that in taxation measures composition schemes are not unknown and when such scheme is availed of by the assessee it is not at all permissible for him to turn around and ask for regular assessment, we think, there is no substance in the contention urged on behalf of the respondents." Considering the law laid down as above by the Apex Court, the Hon'ble Punjab & Haryana High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Union of India v. Dharamendra Textile Processors reported in 2008 (231) E.L.T. 3 (S.C.), the Commissioner (Appeals) had no discretion to reduce the penalty and as there was default in payment of duty of Rs. 10,66,666/-, consequently the penalty had to be of the equal amount. According to the department, payment of part of the duties subsequent to the due date could not absolve the assessee from the payment of penalty to the tune of whole of the duty amount. 9. It is a matter of record that the Apex Court in Venus Castings (P) Ltd. case has clearly held that the assessee having exercised the option and agreed for the procedure for payment of duty in terms of Rule 96ZO(3), is not entitled to subsequently opt out of the scheme before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to do so, the manufacturer has to pay penalty equal to such outstanding amount of duty or Rs. 5,000/-, whichever is greater. The rule clearly provides that where a manufacturer fails to pay the whole of the amount payable for any month by the 15th day or the last day of such month, as the case may be, he shall be liable to pay the outstanding amount of duty along with interest thereon at the rate of 18% p.a., calculated for the period from the 16th day of such month or the 1st day of next month, as the case may be, till the date of actual payment of the outstanding amount and a penalty equal to such outstanding amount of duty or five thousand rupees, whichever is greater. In other words, the amount for each month is payable by two insta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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