TaxTMI 
TaxTMI 
2008 (6) TMI 547
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....posed of the above stay application on June 18, 1997 directing the petitioner-company to deposit Rs. 2,39,925.60p on account of the excise duty. The petitioner-company filed an application dated September 18, 1997 before the Appellate authority for modification of that order. It was rejected on November 30, 1998. In the-meanwhile, the Kar Vivad Samadhan Scheme 1998 (hereinafter referred to as the said Scheme) came into force. The petitioner filed a declaration dated December 30, 1998 under the said Scheme for the purpose of depositing Rs. 2,43,957.30p. for settling his arrears of excise duty. The respondent No. 1 after considering the above declaration of the petitioner-company issued the impugned certificate. It is submitted on behalf of the petitioner-company that the amount directed to be deposited by the petitioner-company for settling his arrears of central excise duty was not assessed correctly under the Kar Vivad Samadhan Scheme, 1998 framed under Chapter IV of the Finance (No. 2) Act, 1998. 3. Drawing the attention of this Court towards the provisions of Section 88 of the Finance (No. 2) Act, 1998 (hereinafter referred to as the said Act), it is submitted on behalf of th....
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....orted in 1989 (39) E.L.T. 178 (S.C.). in support of the above submission. 5. Having heard the learned Counsel appearing on behalf of the respective parties and after considering the facts and circumstances of this case, I find that admittedly the petitioner-company preferred an appeal before the Commissioner (Appeals) against the order dated July 23, 1996 passed by the respondent no. 3. Admittedly the Appellate Authority determined an amount of Rs. 2,39,925.60p. towards the payment to be made on account of duty during the pendency of the appeal. The only question involved in this writ application to be decided by this Court is as to whether the above amount was to be treated as duty paid by the petitioner-company for considering his declaration under the Kar Vivad Samadhan Scheme, 1998, though that amount had not been paid by the petitioner-company. 6 In order to adjudicate the above issue, the Explanation to Clause (ii) (b) under sub-section (m) of Section 87 is quoted below :- "Explanation.- Where a declarant has already paid either voluntarily or under protest, any amount of duties, cesses, interest, fine or penalty specified in this sub-clause, on or before the date of....
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.... rules made thereunder. 8. Upon close scrutiny of the language of the above provision, I find that deposit of the amount which the petitioner-company was required to make as per direction of the Appellate Authority dated June 18, 1997 during the pendency of the appeal was not a condition precedent to admit the appeal. Therefore, I do not find much force in the submissions made on behalf of the respondent that the appeal was not pending at the time of issuing the impugned certificate though the amount was not paid by the petitioner-company in terms of the order dated June 18, 1997. 9. Further, I find that this issue has already been decided by a Division Bench of this Court in the matter of Sunny Detergent Pvt. Ltd. & Anr. v. Commissioner of Central Excise & Ors. (A.P.O. No. 314 of 2003, dated September 15, 2006) [2007 (207) E.L.T. 331 (Cal.)], The relevant portions of that decision are quoted below :- "In the instant case admittedly there was an appeal pending before CEGAT as on the date of making of such declaration. As per revenue a sum of Rs. 32,25,216.00 was payable against the assessed duty of Rs. 33,36,289.00 taking into account payment of Rs. 1,11,072.00. Hence, it ....
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....rview of the said scheme. Question of conduct of the appellant would not be a relevant factor to decide the present controversy. Four decisions of the Apex Court were relied on by the appellant : (i) 2003 (154) Excise Law Times, Supreme Court,Page 354 [Union of India v. Charak Pharmaceuticals (India) Limited]. (ii) 1981 Excise Law Times, Supreme Court, Page 679 (Navin Chandra Chhotelal v. Central Board of Excise & Customs). (iii) 1989 (39) Excise Law Times, Supreme Court, Page 178 (Vijay Prakash D. Mehta v. Collector of Customs). (iv) 2003 (259) Income Tax Reports, Supreme Court, Page 258 (Dr. Mrs. Renuka Datla & Ors. v. Commissioner of Income Tax) We, however, feel it expedient to quote a passage from the decision in the case of Dr. Mrs. Renuka Datla & Ors. (supra). "On an analysis of these provisions, it is clear that a person could avail of the benefit of the scheme, if (1) there was a determination of the amount of tax, etc. , on or before March 31, 1998; [Section 87(m)(i)]; and (2) the determination has been modified in consequence of giving effect to an appellate order; (ibid) a....