9911796707
TMI Blog2014 (9) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... of production (for brevity, the ACP ). The goods manufactured by the assessee fall under the Sub Heading No.7206.90 and 7207.90 and are covered under this provision. 2.2. For the purpose of determining the ACP, the Induction Furnace Annual Capacity Determination Rules, 1997 was introduced. This was notified vide Notification No.24/97 CE(NT), dated 25.7.1997, as amended by Notification No.44/97 CE(NT), dated 30.8.1997. The ACP of the any assessee should be calculated by the jurisdictional Commissioner of Central Excise on the basis of the formula set forth in the Induction Furnace Annual Capacity Determination Rules, 1997. 2.3. If a manufacturer having a total furnace capacity of 3 Metric Tonnes installed in his factory so desires, he may from 1.9.1997 to 31.3.1998 or any other financial year, as the case may be, pay a sum of Rs. 5 Lakhs per month in two instalments latest by the last day of each month and the amount so paid shall be deemed to be the full and final discharge of the duty liability for the period from 1.9.1997 to 31.3.1998 or any other financial year, as the case may be, subject to the condition that the manufacturer shall not avail of the benefit, if any under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants were working under the Compounded Levy Scheme under Section 3A of the Central Excise Act. Their ACP was determined by the Commissioner. In terms of the Commissioner's order, they were liable to discharge duty liability on their products from month to month. They committed default, which resulted in the issuance of a show cause notice. The demand of duty was confirmed by the Commissioner as per order dated 21.12.2001, wherein it was noted that no abatement claims of the assessee were pending and hence the entire amount of unpaid duty required to be recovered. The Commissioner, however, kept in abeyance the question whether any penalty was liable to be imposed on the assessee, in view of a general stay order of the Supreme Court, which was in force in favour of similar manufacturers working under the Compounded Levy Scheme. The present appeal is against the demand of duty. We find that the demand is squarely based on the ACP determined by the Commissioner in his earlier order. In this appeal, the appellant has disputed the correctness of the ACP order also. It is not open to us to examine the legality of the ACP order, which is not the subject matter of this appeal. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess than 3 metric tones, or there is any change in the total capacity, the manufacturer shall pay the amount, calculated pro rata: Provided also that where a manufacturer fails to pay the whole of the amount payable for any month by the 15th day of last day of such month, as the case may be, he shall be liable to, - (i) pay the outstanding amount of duty along with interest thereon at the rate of eighteen per cent. per annum, calculated for the period from the 16 th day of such month or the 1 st day of next month, as the case may be, till the date of actual payment of the outstanding amount; and (ii) a penalty equal to such outstanding amount of duty or five thousand rupees, whichever is greater. Provided that if the manufacturer fails to pay the total amount of the duty payable for each of the months from September, 1997 to March, 1998 by the 30th day of April, 1998, he shall also be liable to pay a penalty equal to the outstanding amount of duty as on 30th day of April, 1998 or five thousand rupees, whichever is grater. Explanation:- For removal of doubts it is hereby clarified that Sub-rule (3) does not apply to an induction furnace unit which ordinarily produces castings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Levy Scheme and held that the show cause notices were rightly issued and the demand was correctly confirmed by the Commissioner by order dated 21.12.2001. The Tribunal also noticed that there was no abatement claim of the assessee pending and, therefore, held that the entire amount is to be recovered. Apropos the plea of correctness of the ACP order raised by the assessee, the Tribunal declined to interfere with the ACP order stating that the same is not the subject matter of the appeal. 9. During the course of arguments, the question of law incidentally raised is that when there is no declaration filed informing their willingness to pay duty on lumpsum basis, which is a mandatory requirement of Rule 96ZO(4) of the Rules for opting to payment of duty under Rule 96ZO(3) of the Rules, whether the assessee is liable to discharge duty for the period after 1.4.1998. 10. In the present case, we find that from the beginning, the assessee had claimed that it has opted for compounded levy scheme under Rule 96ZO(3) of the Rules, by making a declaration under Rule 96ZO(4) of the Rules. There is no dispute on this fact and, therefore, it will not lie in the mouth of the appellant to plead ..... X X X X Extracts X X X X X X X X Extracts X X X X
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