9911796707
TMI Blog2023 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Year 1997-98 and the Respondent had discharged the duty burden under the said provisions availing MODVAT Credit. There are no infirmity in the order passed by the Ld. Commissioner - appeal of Revenue dismissed. - Excise Appeal No. 539 of 2010 And Excise Cross Objection No. 116 of 2010 - Final Order No. 75069/2023 - Dated:- 27-2-2023 - Hon ble Shri P.K. Choudhary, Member(Judicial) And Hon ble Shri Rajeev Tandon, Member(Technical) For the Revenue : Shri S.S.Chattopadhyay, Authorized Representative For the Respondent (s) : Shri Sourav Bagaria Shri Indranil Banerjee, both Advocates ORDER P.K. CHOUDHARY : The present Appeal has been filed by the Revenue against the Order-in-Original No.69/Denovo/Commr/CE/Kol-II/Adjn/2009-10 dated 16.03.2010 passed by Commissioner of Central Excise, Kolkata-II vide which he has dropped the proceedings initiated against the assessee vide Show Cause Notice dated 02.04.2002 by observing that the assessee complied with the Order of the Commissioner of Central Excise, Kolkata-II Commissionerate and acted on that basis and no duty was intentionally paid in excess and passed on to the buyers by the assessee inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to review at the end of the financial year. We further find that the orders passed by the Commissioner of Central Excise, Kolkata-II Commissionerate dated 23.09.2007 and 20.04.2008 were not reviewed nor any Appeal was filed against the said order. 4. We find that the case of the department as per their grounds of Appeal is that with introduction of Induction Furnace (Annual Capacity) Determination Rules, 1997 w.e.f. 01.08.1997 in terms of Notification No.24/1997 dated 25.07.1997 which is applicable to induction furnace unit which ordinarily produce non-alloy ingots and billets falling under sub-heading No.7206.90 and 7207.90 of the Central Excise Tariff Act, 1985. Induction Furnace has no other option but to pay Central Excise duty under Section 3A of the said Act. 5. We find that the Ld. Commissioner in the de novo order has given detailed findings. The relevant paragraphs are reproduced:- 6.6. The Assistant Commissioner Central Excise Kol-II Commissionerate in his letter under C. No. V(I)9/Audit/CERA/HND/99/2704 dt. 18.05.99 offered his comment which is reproduced below:- M/s Beekey Steel Industries Ltd., of 286 287 G.T. Road, Saikia, Howrah-6 were engaged in manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, there is no evidence of any such review of the order of the Commissioner permitting the assessee to pay duty under Section 3 of Central Excise Act, 44. It appears that the Appellants continued paying duty all along under Section 3 of the Act and not under Section 3A during the material period. 6.8. From the scheme of levy of excise duty on the basis of capacity of production it is clear that an assessee can pay duty under Section 3A on the basis of annual capacity of production (ACP)determined by the jurisdictional Commissioner of Central Excise. The assessee himself can not determine the A.C.P. In the instant case the jurisdictional Commissioner of Central Excise passed an order that assessment by the assessee and for that purpose payment of duty was required to be done under Section 3 of Central Excise Act, 1944. When an order of assessment is made by an authority with jurisdiction under taxing statute which is intra vires, such assessment order is not open to challenge, though it may be open to question such assessment order under appeal provided in the statute under Act. 226 or 227 of the condition. (Apex Court s judgment in the case Pioneer Trader Vs. Chief Contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Act. Section 11A of the said Act during the material time did not permit the department to raise demand of loss of revenue to Government exchequer. In view of the discussion made hereinabove, on careful consideration and perusal of entire records of the case I find that there is contravention of the provisions of Section 3A of the said Act and rule 96ZP of the said Rules read with Notification No. 24/1997 CE dated 25.07.1997 and there is intent on the part of the said assessee to evade duty of excise by way of abetting their buyers, for omission and commission, in getting irregular MODVAT Credit amounting to Rs.79,14,998/- (Rupees Seventy Lakh Fourteen Thousand Nine Hundred Ninety Eight ) only during the material period but the existing law provisions does not permit to confirm the demand made in the said notice though the allegations made in the said notice are correct. As there is certain contravention of the provision of the said Act or Rule made thereof with intent to evade payment of duty of excise I find penalty under rule 173Q(1)(a) of the said Rules is warrantable. 6.12 On re-appreciation of the entire case records and factual matrix in consideration of which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings I am of the view that the assessee complied with the order of the Commissioner of Central excise, Kolkata-II Commissionerate and acted on that basis and no duty was intentionally paid excess and passed on to the buyers by the assessee in as much as the modvat credit was available to the buyers when duty was paid by the assessee correctly under the provisions of Section 3 of Central excise Act, 1944 and hence I hold the charges framed against the assessee not sustainable. 6. We find that the Commissioner s permission dated 23.09.1997 and 20.04.1998 was neither withdrawn nor challenged before the higher appellate forum. Inasmuch as the Commissioner vide his order dated 23.09.1997 and 20.04.1998 allowed the Respondents to work under the provisions of Section 3 w.e.f. Financial Year 1997-98 and the Respondent had discharged the duty burden under the said provisions availing MODVAT Credit. 7. In view of the above discussions, we do not find any infirmity in the order passed by the Ld. Commissioner. The Appeal filed by the Appellant Revenue is rejected. Cross Objection also gets disposed of. (Operative part of the order was pronounced in the open Court.) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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