ORDER
Archana Wadhwa, Member (J)
1. As per facts on record, M/s Shree Viramgam Re-Rolling Mills, are engaged in the manufacture of excisable goods falling under Chapter 72 of the schedule to the Central Excise Tariff Act, 1985. They were discharging their duty liability under Section-3A of the Central Excise Act, 1944 i.e. under Compounded Levy Scheme. During the period from Sept.’97 to 31.3.2000, they paid duty short as compared to APC determined by the competent authority. Hence, SCNs were issued to them proposing recovery of the duty paid short and proposing penal action. The Dy. Commissioner confirmed the demands amounting to Rs. 12,93,260/- under Rule 29ZP(3) of CER, 1944, along with interest and imposed a penalty equal to the amount of duty under Rule 96ZP(3)(ii) of CER, 1944. He also observed that since the recovery of duty was under Rule 96ZP and not under Section 11A of the CEA, 1944, the time limit prescribed under the said Section would not be applicable.
2. Being aggrieved with the said OIO, the said assessee filed an appeal with the Commissioner (A), Ahmedabad. The Commissioner (A) vide his OIA No. 149/2003 (149-A-II)CE/Comr.(A-III), dt. 27.6.03 (sic) the captioned OIO and allowed the appeal. The grounds on which the said appeal was allowed are as under:
Commissioner (A) has ruled that three show cause notices were issued proposing recovery of duty paid short Under Section 11A, whereas, the impugned order demands proposed in all the show cause notices in dispute have been confirmed under Rule 96ZP of Central Excise Rules, 1944 and this has not been invoked in any of the above referred show cause notices. Hence, the Commissioner (A) has set aside that part of the order as there is inconsistency in the SCNs and impugned order. Since the demand is not sustainable as discussed above, the penalty in respect of the above referred three show cause notices also has been done away with.
3. As regards demands confirmed in respect of two subsequent show cause notices, he has ruled that since the determination of APC was the subject matter of Commissioner and he could only decide the appeals arising out of any decision/order passed by authority lower in rank than the Commissioner, this issue has not been decided by him. However, he has reduced the penalty to Rs. 1,00,000/- from an amount equal to duty demanded as he found that there was no mens rea to evade duty.
4. The OIA passed by the Commissioner (A) is impugned on the following grounds:
a) Section 3A is a parent legislative provision under which powers were conferred to the Government to specify manner to levy and collect the duty of exercise on the notified goods (i.e. re-rolled products in this case). Accordingly, provisions under Rule 96ZP were formed. In the instant case, duty has been demanded invoking provisions of Section 3A and such demand was earlier confirmed by the Dy.Commissioner under Rule 96ZP.
b) The Hon’ble Supreme Court of India in the case of Dalmia Industries Ltd. v. Collector 1997 (96) ELT A 154 (S.C.) has held that non-mentioning of Section 11A of Central Excise Act, 1944 along with Rule 196 of Central Excise Rules, 1944 in the SCN will not vitiate the proceedings and the demand.
c) Further, the Hon’ble Supreme Court of India in the case of Fortune Impex v. Commissioner has held that non-mention of the particular Section of the Customs Act, 1962 would not vitiate the proceedings, particularly when allegation and charges against all the appellants were mentioned in clear terms in the SCN.
5. We have heard Shri M.M. Mathkar, learned JDR for the Revenue. Nobody represented the respondent. After going through the impugned order, we find that the Commissioner (Appeals) has set aside the duty on the short ground that the notice proposed recovery under Section 11A, whereas the same stand confirmed by Dy. Commissioner under Rule 96ZP. As such, he has observed that the impugned order had traveled beyond the show cause notice.
6. After going through the show cause notice, we find that the notice proposed recovery invoking provisions of Section 3A on the ground that the appellant has not discharged their duty liability in terms of ACP fixed by the Commissioner. As such, all the allegations made against the assessee were clearly spelt out in the show cause notice and it is not a case where two different and distinct provisions of law stands invoked in the notice and the order so as to hold that the order has traveled beyond the show cause notice. We fully agree with the learned JDR that the setting aside the demand on the above technical ground was not warranted.
7. We, accordingly, allow the present appeal of the Revenue and remand the matter to the Commissioner (Appeals) for decision on merit.
(Pronounced in Court on 11.03.08)