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TMI Blog2021 (4) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-Original No.7 of 2011 dated 28.07.2011. 2. The learned counsel appearing for the writ petitioners made a submission that the petitioners were running a Partnership Firm and the manufacture of Hot Re-rolled products falling under Chapter subheading 8469.80 and Plastic Molded Parts falling under Chapter Heading 72 of the Central Excise Tariff Act, 1985. The firm was operating under the then Compounded Levy Scheme (CLS) as per Section 3A of the Central Excise Act, 1944 read with Sub-rule 3 of Rule 96ZP of then Central Excise Rule, 1944. As per the provisions of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997, the Commissioner of Central Excise (CCE) had fixed the Annual Production Capacity (APC) of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual production and the relevant paragraphs are extracted hereunder: 45. Whether an assessee who chooses once to pay duty in terms of Rule 96ZP(3) can be compelled to pay duty calculated in accordance with the said rule for all times to come without any regard to the actual production? is a question which requires examination. 46. It is possible that in a given case an assessee choosing at a given point of time to make payment of duty on monthly basis calculated in terms of sub-rule (3) but a few months later (for that matter even a month later), for various legitimate reasons, production may fall considerably below the ACP (of the assessees factory). It is possible, in some cases there can be total cessation of the manufacturing act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities during the relevant point of time, the question of collection of excise duty does not arise at all. In the present case, the factum regarding the closure of production unit is duly informed to the respondent/Department and the said letter was acknowledged by the Department. This being the factum, there is no reason whatsoever to issue the impugned order by the respondent. This apart, it is contended that the impugned order itself was not communicated to the writ petitioner and it was communicated belatedly along with recovery notice which was issued during the year 2018. For all these reasons, the writ petition is to be allowed. 7. The learned Senior Standing Counsel appearing on behalf of the respondent objected the said contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. The learned Senior Counsel on merits also contended that the writ petitioner had opted for "Compounded Levy Scheme". The writ petitioner/Company was operating under the Compounded Levy Scheme as per Section 3A of the Central Excise Act, 1944 read with Sub-rule 3 of Rule 96ZP of then Central Excise Rule, 1944, during the relevant point of time. This fact was admitted by the writ petitioner even in the affidavit filed in support of the writ petition. When the petitioner had opted to pay the excise duty under the Compounded Levy Scheme, now they cannot say that they have stopped the production unit on 26.04.1999. Therefore, they are not liable to pay for the entire financial year. Admittedly, the production unit was closed on 26.04.1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the impugned order and remand the case to the adjudicating authority who shall pass fresh order after extending a reasonable opportunity to the assessees of being heard in their defence. 10. With reference to the judgment of the Hon'ble Supreme Court of India in the case of Bhuwalka Steel Industries Limited vs. Union of India cited supra, the learned Senior Standing Counsel referred paragraph No.58 which reads as under: 58. Therefore, we find it difficult to accept the submission of the respondent that the issue is covered by the judgments of this Court in Venus Castings and Supreme Steels. In our opinion, for the reasons mentioned above, these two judgments require a further examination. Apart from that, these judgments did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Apex Court. Therefore, the case on hand is to be decided independently with reference to the terms and conditions of the Compounded Levy Scheme which was framed under the provisions of the Act and Rules. When the petitioner admits that he was paying the excise duty under the Compounded Levy Scheme and he is bound by the scheme and further, the petitioner admitted the fact that the production unit was closed with effect from 26.04.1999, the petitioner is liable to pay excise duty for the whole year as claimed by the Department. Apart from this, the writ petition is filed after a lapse of 7 1/2 years from the date of passing of the impugned order on 28.07.2011. Therefore, the writ petitions stand dismissed both on merits as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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