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TMI Blog2023 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... s paid by the assessee correctly under the provisions of Section 3 of the Central Excise Act, 1944. This is the second round of litigation before the Tribunal. We find that the Tribunal vide Order No.A/1241/KOL/2008 dated 11.12.2008 in Excise Appeal No.E- 195/2008 remanded the matter to the original authority for fresh decision observing that the Order-in-Original dated 14.01.2008 has been passed without reference to the quantum of production of specified and non-specified goods without reference to whether permission to pay duty under Section 3 was correctly given or whether it was reviewed later on. In the light of the cited decisions of the Tribunal and also without examining whether there has been any excess utilization of the MODVAT Credit in respect of bars and rods manufactured by the Appellant which are used for construction purposes. 2. In the de novo order the Ld. Commissioner has framed three substantial questions of facts :- i) It is required to be determined whether the asessee was required to pay the duty under Section 3 or Section 3A of the Central Excise Act, 1944 during the material period, which in turn (sic.) requires determination of pre-dominance of the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per notification 22/97-CX-(NT) dated 25.07.97 and CBEC circular No. 225/41/97-Cx dated 25/07/97 manufacturers produced casting or stainless steel products and also incidentally produced mild steel ingots or billets, such manufacture would pay normal Excise Duty of 15% Adv. Under Section 3 on all this products including ingot or billet of mild steel. Considering the all aspect and for the sake of revenue, Commissioner of Central Excise may permit the assessee to pay CEX duty in respect of all product under Section 3 of Central Excise Act, 1944. As the assessee had paid CEX duty on non-alloy notified product at the rate of 15% Adv. Under Section 3 of Central Excise Act, 1944 the downstream manufacturer would have entitled to take Modvat Credit under Rule 57A of Central Excise Rules, 44 at the rate of 15% Adv. On the aforesaid goods. So there is no question of loss of revenue. On the basis of above, the objection may be considered for closure." 6.7. From the submission made by the assessee and perusal of the case records as well as the facts held by the Hon'ble Tribunal in its order no. A-124/Kol/08 as well as jurisdictional Assistant Commissioner's comments furnished to the then C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 orders. I agree with the assessee's contention that the said two orders have reached there finality and question of payment of duty otherwise than the order passed by the Commissioner can not arise. 6.10. The assessee have been issued the impugned show cause notice which alleges that by paying duty under Section 3 of the Act, they have enabled the buyers of their goods to avail credit of the entire duty amount of Rs. 3,95,74,989/- , whereas had they paid the duty under the Compounded levy scheme, the buyers of their product would have got credit of only Rs.3,16,59,991/- Hence, an allegation was made that there has been a revenue-loss of Rs. 79,14,998/- The Hon'ble Tribunal's observation in this regards is pertinent, which is as follows. "Surprisingly, there is no allegation that the entire amount of the compounded levy which would have been paid by the Appellants, but had not been so paid, has been lost to the Government." 6.11 In this context the original adjudicating Commissioner vide his order no. 54/Commr/CE/Kol-II/Adjn/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 of Central Excise Act, 1944 vide Additional Commissioner (Tech), Central Excise, Kolkata-II Commissionerate's letter C.No.IV (16)206-CE/PR/Cal-II/97/6133A dt.23.09.97 and C.No.IV (16)206-CE/PRO/Cal-II/97/6382-G dt.20.04.98 I find that the Commissioner in the impugned order has decided the nature of products ordinarily produced by the assessee on the basis of quantify of notified and non-notified items and I do not find any infirmity in the criteria adopted by the Commissioner to detemine whether the assessee manufactured ordinarily alloy or non-alloy iron and steel products during the period from Sept, 1997 to July, 1998 and allow the assessee to discharge the duty liability under Section 3 of the Act with a rider that the concession would be reviewed at the end of the financial year on the basis of revenue performance. From August, 1998 onwards the Commissioner in his order communicated under Additional Commissioner C.E. (Tech), Kolkata-II Commissionerate's letter C.No.IV (16)206-CE/PRO/Cal-II/97/7854G dt.17.07.98 has rightly, in my view, not allowed the assessee to discharge duty liability under Section 3 of Central Excise Act, 12 it can not be said during that period th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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