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TMI Blog2015 (11) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.90 of the Schedule to the Central Excise Tariff Act. The goods manufactured by the appellant were notified by Notification No.30/97-CE (NT) dt.1.6.97 as amended vide Notification No.43/97-CE (NT) dt.30.8.97 issued under section 3A of the Central Excise Act, 1944 read with Rule 96ZO chargeable to duty under compounded levy scheme. The appellant vide their letter dt.7.8.97 opted for compounded levy scheme as provided under the above provisions of law. On this request, the Commissioner of Central Excise, Jaipur-I determined the annual capacity of the furnace of the appellant as 9600 MTs and informed the same to the appellant vide letter dated 22.10.1997. On the basis of annual capacity so determined, the assessee was required to pay Rs. 5 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction capacity and opted to pay duty on the basis of actual production. After adjudication, the duty demand was confirmed and penalty was also imposed under Rule 209 by the Joint Commissioner vide Order-in-Original dated 14.9.99. It was therein held that no letter of request dated 26.5.1998 of the appellant had reached the office of the Commissioner. The action against the assesse imposing penalty as per third proviso to Rule 96ZO was kept in abeyance. 5. Aggrieved by the said order, the appellant filed appeal alongwith stay application before the Commissioner (Appeals). The Commissioner (Appeals) vide order dated 4.8.2000 directed the appellant to deposit dues within three weeks time. Due to non-compliance of the stay order, the appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived in the office of the Commissionerate. He also challenged the veracity of the photocopy of the letter produced by the appellant. Moreover, that once the appellant opted for the scheme under sub-rule (3) of Rule 96ZO, they cannot opt out of the scheme during the period for which duty liability had already been fixed basing upon the annual capacity of production. He relied on decision of the apex court in CCE vs. Venus Castings Pvt.Ltd.-2000 (117) ELT 273 (SC). 8. Heard both sides and perused the records carefully. 9. The foremost issue that poses for consideration is whether the letter dated 26.5.98 as contended by appellant was received in the office of the Commissionerate. This is a question of fact and the burden lies purely upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued. The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the post office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, senders name and addressee's name to avoid misuse. In the absence of such record, a certificate of posting may be of very little assistance, where the dispatch of such communication is disputed or denied as in this case." 10. In fact, this Tribunal had earlier remanded the matter to the Commissioner (Appeals) affording a further opportunity to the appellant to adduce evidence to establish whether the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of production. An assessee cannot have a hybrid procedure of combining the procedure under Rule 96ZO(1) to which Section 3A(4) of the Act is attracted. The claim by the respondents is a hybrid procedure of taking advantage of the payment of lumpsum on the basis of total furnace capacity and not on the basis of actual capacity of production. Such a procedure cannot be adopted at all, for the two procedures are alternative schemes of payment of tax." 12. In the above judgement, it was observed by the Apex Court 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. Similar view was taken in Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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