2015 (5) TMI 133

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....arch 2000. In April 1998, they had opted for compounded levy scheme of Rule 96 ZO (3) of Central Excise Rules, 1944 under which their annual capacity of production had been determined by the Commissioner and based on that, their monthly duty liability has been fixed. However, on 27/2/99 and 4/5/99 they requested the Jurisdictional Central Excise authorities for re-determination of duty liability on actual production basis during the year 1998-1999 under Section 3A (4). The appellant, accordingly, from December 1999 onward started paying duty on actual production basis. 1.2 The Department was of the view that since in April 1998 they had opted for compounded levy scheme and thereafter they had not withdrawn their option, they would be liabl....

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....date, penalty equal to the duty liability for that month would be imposable. 1.3 Against this order of the Commissioner, the appellant have filed an appeal before the Tribunal. 1.4 The Tribunal vide final order-in-appeal No. 61/06-CE dated 07/10/05 upheld the Commissioners order with regard to confirmation of duty demand, but reduced the penalty under Rule 96 ZO (3) to Rs. 50,000/-. The Tribunal while upholding the Commissioners order confirming of the duty demand relied upon the Apex courts judgment in the case of CCE vs. Venus Castings (P) Ltd. reported in 2000 (117) E.L.T. 273 (S.C.) and observed that in the present case the appellant during the same financial year has asked for assessment of duty under Section 3A (4) based on the actu....

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.... appeal remanded by the High Court had not been heard by the Tribunal. It is this matter which is being heard today in these proceedings. 2. Heard both the sides. 3.  Shri Rajesh Chhibber, Advocate, the learned Counsel for the appellant, pleaded that the penalty has been imposed by the Commissioner under third proviso to Rule 96 ZO (3) according to which penalty equal to the duty liability for a particular month is attracted when the duty for that month is not paid by the due date or is short paid, that for imposition of penalty, the provision of Section 11AC or the Rule 25 of the Central Excise Rules, is not invokable, that with regard to imposition of penalty under Rule 96 ZO (3), Honble Punjab & Haryana High Court in its judgment ....