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TMI Blog2009 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... the clearances made by them through PLA, but the appellants made the payments through Cenvat Credit eligible to them. Show-cause notices were issued and Adjudicating Authority in both the orders held as under: (i) Order-in-Original No. 26/2007 (CE), dated 31-12-2007 ORDER 1. I confirm the demand of Rs. 20,000 (Duty) and Rs. 400 (Ed.Cess) being the duty payable on the clearances of M.S. Scrap to be paid in PLA under section 11A of the Central Excise Act, 1944 read with rule 8 of the Central Excise Rules, 2002 with consequential relief of taking back the credit already utilized towards payment of duty. 2. I demand interest under section 11AB of the Act, 1944 read with rule 8 of the Rules and allow appropriation of the amounts already paid towards interest in these 3 cases. 3. I impose penalty of Rs. 92,00,000 under rule 25 read with sub-rule (3A) of rule 8 of the said Rules. (ii) Order-in-Original No. 4/2008 (CE), dated 29-5-2008 ORDER (a) I reject the utilization of Cenvat credit of Rs. 3,08,59,401 (Rs.1,14,22,600 + Rs.1,94,36,801) towards payment of duties on the clearance of Cement and Clinker by M/s. ACL during the period from July 2006 to May 2007 as irregular payment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty payable i.e., Rs. 20,400 and Rs. 3,08,59,401, we find that the Adjudicating Authority has herself admitted that the entire amount has been paid by the appellants through Cenvat credit available to appellant. It can be seen from the portion of the order reproduced hereinabove that the Adjudicating Authority has directed the appellant to deposit the amount through PLA and take credit in the Cenvat which has been debited by them. 5.1 On this background, we would like to consider the submissions made by the learned counsel. It is undisputed that the appellant-company has been declared as a sick industrial company and the scheme of revival package is drawn by the Board for the Industrial and Financial Reconstruction vide its order dated 25-7-2008. Before reverting to the declaration/order made by the Board, we would read the provisions of section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 which is as under: "22, Suspension of legal proceedings, contracts, etc.- (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii such manner as may be specified by the board: Provided that such declaration shall not be made for a period exceeding two years which may he extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate. (4) Any declaration made under sub-section (3) with respect to a sick industrial company shall have effect notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a Court, Tribunal, officer or other authority or of any submission, settlement or standing order and accordingly,- (a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any Court, Tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and (b) on the declaration ceasing to have effect - (i) any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt policy guidelines in this regard. (B) Income-tax Department : To consider (i) To exempt/grant relief to ACL from the previsions of sections 41(1), 43B, 45, 72(3), 79, 80 read with sections 139 and 115JB of the Income-tax Act from the date the company became a sick industrial company and for a further period of seven (7) years from COD i.e., 30-9-2006. (ii) To exempt ACL from the penal provisions of the Income-tax Act, 196t and rules made thereunder during the period mentioned as at (i) above. (iii) To waive entire interest and penalty levied and leviable under various provisions of the Income-tax Act, 1961 and rules made thereunder. (C) Central Excise, Customs and Service Tax Authorities (i) To waive entire interest and penalty levied or leviable on Excise Duty and Service Tax Arrears and to accept payment of excise duty/service tax outstanding as on the cut-off date over a period of seven years without any interest/penal interest/ penalty. The company vide their letter dated 8-5-2007, has accepted the outstanding dues of Deptt. as Rs. 6,29,62,888 and repayment of their dues in five (5) annual instalments. (ii) To exempt ACL/its directors/officers from the penal provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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