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TMI Blog2018 (2) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... fabrics shall discharge 50% of the amount of duty payable for a calendar month under Sub-Rule [1] of Rule 96 ZQ of Central Excise Rules, 1944 by the 15th of the calendar month and the remaining amount by the end of the calendar month. Further Rule 96 ZQ[5] of Central Excise Rules stipulates that if an independent processor fails to pay the amount of duty or any part thereof by the date specified in rule [3] he shall be liable to; i. Pay the outstanding amount of duty along with interest at the rate of 24% per annum calculated for the out-standing period on the outstanding amount and ii. A penalty equal to an amount of duty outstanding from him at the end of such month or rupees five thousand whichever is greater 3. The Commissioner of Central Excise, Coimbatore determined the duty liability of the respondent provisionally, under the determination of Annual Capacity of Production scheme [ACP], vide order No.IV/16/460/98 Cex.Pol. Dt.19.04.1999. In terms of Rule 96 ZQ[3], upto 31.03.2000, finally determined as Rs. 12,50,000/- per month, vide order in C.No.IV/16/460/98 Cex.Pol. dt.19.01.2001. 4. For the period from 01.04.2000 the Asst. Commissioner, Conoor Division, vide C.No.IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 96ZQ[5][i] and Penalty amounting to Rs. 10,36,38,868/- under Rule 96ZQ[5][i], and penalty amounting to Rs. 10,36,38,868/- under Rule 96ZQ[5][ii] [Appeal No.E/308/2005] 7. CESTAT, Chennai, has passed a common order, in the appeals filed by the respondent, vide final order No.499 to 501/2006 dt. 12.06.2006, wherein, demand of duty raised by the Commissioner, in proceedings dated 21.04.2004 (ACP Order) and dated 11.02.2005 (demand of interest), respectively have been upheld. CESTAT, Madras further ordered, de nova adjudication to quantify the penalty to be imposed on the respondent, in terms of Rule 96 ZQ (5) (ii) of Central Excise Rules, 1944. CESTAT, Madras, has directed that the assessee should be given a reasonable opportunity before confirming the penalty. On this aspect, the Tribunal, has observed that since the company was declared sick, imposition of equal penalty, was harsh. CESTAT, Madras, further ordered that while imposing penalty, the extent of default for each month must be ascertained and penalty to be determined, on the facts and circumstances of the case. 8. As directed by the tribunal, the Commissioner of Central Excise, after giving opportunity to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, in accordance with law. (iv) Since the appellants/assessees, have grievance of violation of natural justice, the authority shall do justice to afford reasonable opportunity of hearing to prevent repetitive litigation. 11. Earlier, the Tribunal, in its final order NO.499 to 501/2006 dated 12.06.06, ordered de-nova adjudication, when the respondent appealed against the O-I-O Nos.35/2001 dt. 19.09.2001, 16/2004 dt. 21.04.2004 and 7/2005 dt. 11.02.2005. De-nova Adjudication order (No.2/2007 dt.26.02.2007) was passed by the Commissioner of Central Excise, as per the directions of the Tribunal. 12. Vide final order Nos.499 to 501 of 2006 dated 12.06.2006, while ordering, De-Nova Adjudication, the Tribunal has upheld the demand of duty raised by the Commissioner (para 5 of the order). Hence, duty liability of the respondent has become final and conclusive. The tribunal, vide para 5 of the order dated 12.06.2006, while directing de-nova adjudication had only directed to quantify the penalty to be imposed on the respondent in terms of Rule 96 ZQ(5)(ii) of the Central Excise Rules, 1944. Rule 96 ZQ (5)(ii) of the Central Excise Rules, 1944 mandates equal penalty on the duty liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal No.02/2007 dt. 26.02.2007 imposing the interest and penalty under -rule (5) of Rule 96 ZQ was passed, after following earlier directions in Tribunal's final order No.499 to 501/2006 dated 12.06.06, CESTAT, Madras, should have straight away gone into the merits of imposing interest and penalty. CESTAT, Madras has erred in the impugned final order, by not doing so, and instead remanded the matter back to the Adjudicating Authority. 16. Heard Mr.A.P.Srinivas, learned senior standing counsel for Customs, Central Excise & Service Tax. 17. Though, Mr.A.P.Srinivas, learned counsel submitted that duty liability has already been upheld and that therefore, there is no need for redetermination of duty liability and further contended that in the case of the respondent, there was no consent for redetermination of duty, this Court, is not inclined to accept the said contentions, for the reason that final order Nos.40241 to 40263 of 2015 dated 24.02.2015 shows that in view of the judgment of the Hon'ble Apex Court in CCE, Chandigarh Vs. Doaba Steel Rolling Mills reported in 2011(269) ELT 298 and Triveni Alloys Limited Vs. CESTAT, Chennai, reported in 2014 (306) ELT 617 (Madras), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (ii) The authority shall also follow the ratio laid down in the following judgments and the appellant shall have proper opportunity of hearing on the basis of the ratio laid down in these cases:- (a) Triveni Alloys Ltd. Vs. CESTAT, Chennai 2014 (206) ELT 61 (Mad.) (b) CCE, Chandigarh Vs. DOABA Steel Rolling Mills 2011 (269) ELT 298 (SC) (iii) wherever abatement is permissible, that shall be allowed by the authority concerned in accordance with law. (iv) Since appellants have grievance of violation of natural justice, the authority shall do justice to afford reasonable opportunity of hearing to prevent repetitive litigation. (v) Wherever determination of ACP arises, the authority with due regard to Rule 3 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 shall determine the same on the basis of materials on record and the appellants shall get proper opportunity of hearing to lead their defence in that regard. (vi) Since it is mentioned in the Bar that Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 is under challenge before Hon'ble High Court of Madras in the writ application as aforesaid, th authority shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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