Customs, Excise and Gold Tribunal - Bangalore
Cce vs Sheetal Shipping And Metal Processors ... on 21 January, 2004
Equivalent citations: 2004(94)ECC311, 2004(175)ELT535(TRI-BANG)
ORDER
K.K. Usha, J. (President)
1. The Revenue is in appeal. The challenge is made to the findings in the impugned order that an assessee working under Rule 96ZO(3) of the Central Excise Rules is entitled to abatement of duty in case the units remain closed for a period of not less than 7 days.
2. We have perused the records and heard both sides. The contention of the learned SDR is that, the impugned order is contrary to the law settled by the Apex Court vide its judgment in the case of CCE & C v. Venus Castings (P) Ltd., 2000 (69) ECC 1 (SC) : 2000 (117) ELT 272 (SC) and in the case of Union of India v. Supreme Steel & General Mills, 2001 (78) ECC 225 (SC) : 2002 (133) ELT 513 (SC). As against this, learned counsel for the respondents/assessee has submitted that Proviso to Sub-section (3) of Section 3-A specifically contemplates abetment of duty in the event of closure of unit. He also points out that the decision of the Apex Court in the case of Venus Castings (P) Ltd., supra, does not relate to this issue. He has also brought to our notice, the decision of this Tribunal in the case of Malviya Steel Ltd., v. CCE, Jaipur, 2002 (147) ELT 563 (T). In Appeal No. E/352/01, the respondent/assessee has also made a contention that recovery is sought to be made without issuing notice as contemplated under Section 11-A of the Central Excise Act. He also refers in this connection to the decision of this Tribunal in the case of CC v. Ferro Alloys Corporation Ltd., 1992 (39) ECC 40 (T) : 1992 (59) ELT 633. As against this, the learned SDR has submitted that in regard to units under Compounded Levy Scheme, the question of short levy proceedings and recovery under Section 11-A do not arise. What is involved is only recovery of amounts due to the Government. He also pointed out that this position remains settled by the Larger Bench decision of this Tribunal in the case of Mohinder Steels Ltd. v. CCE, Chandigarh, 2002 (145) ELT 290 (T-LB).
3. A perusal of Sub-rule (3) of Rule 96ZO makes it clear that a fixed amount is to be paid by units having a production capacity of 3 M.T. This Rule contains no provision for any abatement in the event of closure of unit. The Rule also opens with a non-obstante clause that notwithstanding anything stated in the earlier rule, the provisions of this rule shall determine the payment of duty by the units covered by that sub-rule. It is also to be noted that the earlier sub-rule of this Rule 96ZO contains specific provisions of abatement of duty in the event of closure of units. Thus, the provisions in Rule 96ZO-3 are in contrast to the earlier provisions. The Supreme Court also specifically held in para 9 of its judgment in the case of CCE & C v. Venus Castings (P) Ltd., supra, that no abatement will be available to a unit working under 96ZO-3. In the position emerging above, we hold in favour of the Revenue. The learned Commissioner was in error in allowing the abatement of duty in the respondent's cases. The impugned orders are accordingly set aside and the appeals are allowed.