ORDER
P.G. Chacko
1. This application is for waiver of pre-deposit of an amount of duty of Rs.7,26,352/- and an amount of penalty of Rs.2,50,000/-.
2. The applicants were working under Compounded Levy Scheme under Section 3A of the Central Excise Act and were paying duty on the basis of annual capacity of production (ACP) determined by the jurisdictional Commissioner. While so, on 26.05.1998, they requested the Commissioner in writing for discontinuing to work under Section 3A of the Act and w.e.f. that date paid Central Excise duty on the basis of actual production. The Department was not agreeable to such payment and, therefore, by show-cause notice (SCN) directed the applicants to pay the differential duty of Rs.7,26,352/- on the basis of the ACP determined under the provisions of Rule 96ZO read with Section 3A, for the period September 1998 to January 1999. This was resisted by the party. The dispute was adjudicated by the Joint Commissioner who confirmed the demand of duty against them and imposed on them a penalty of Rs.2.5 lakhs under Rule 209 of the Central Excise Rules. The appeal filed by the assessee against the Joint Commissioner’s order was rejected by the Commissioner (Appeals) on the sole ground of non-compliance with the requirement of pre-deposit of the adjudged dues under Section 35F of the Act. Hence the appeal before the Tribunal and the present application.
3. Heard both sides. Ld. Advocate Shri J.S.Agarwal submits that the issue involved in the case is whether the assessee was entitled to discharge liability of payment of duty, after option out of the compounded levy scheme, on the basis of actual production and that the said issue stands settled in favour of the assessees by decisions of the Tribunal. In the connection, he has cited the decision in the case of Ganpati Industries Vs Commissioner of Central Excise, Kanpur [2000 (122) E.L.T.406], wherein the Tribunal relied on the Supreme Court’s decision in the case of CCE Vs Venus Castings [2000 (38) RLT-(SC)]. Ld. Advocate has further, fairly, submitted that the decision in Venus Castings (supra) rendered by a 2-Member Bench of the apex Court is under review by a 3-Member Bench of the Court and that the Larger Bench is yet to render its decision in the matter. Notwithstanding this position, ld. Advocate submits that the applicants have a strong prima facie case as of now and, hence, are entitled to complete waiver of pre-deposit of the duty and penalty amounts.
4. I have heard ld. JDR Shri Swatantra Kumar who has reiterated the findings of the adjudicating authority and has opposed complete waiver of pre-deposit of duty and penalty amounts.
5. I find that the impugned order is not an order on the merits of the dispute. It is an order passed on the sole ground of non-compliance with Section 35F of the Cental Excise Act. Further, the adjudicating authority decided the issue against the assessee without duly examining the assessee’s letter, whereby they had proposed to opt out of the compounded levy scheme and pay Central Excise duty on the basis of actual production thenceforth. It is further noticed that the decisions of the Supreme Court in the case of Venus Castings (supra) is in support of the assessee’s case in the present appeal and that the Tribunal’s decision cited by ld. Advocate, has relied on Venus Castings (supra) to decide an identical issue in favour of the assessees concerned. Since the issue in Venus Castings (supra) is yet to be sorted out by the Larger Bench of the apex Court, the aforesaid decision of the apex Court still holds ground operating in favour of the present assessees. I further note that since the party chose to pay Cental Excise duty on the basis of actual production only after having submitted their option to the Commissioner for opting out of the compounded levy scheme and since the quantum of duty so paid on the basis of actual production had not been disputed, there appears to be no warrant for imposition of penalty. As regards the duty liability, the applicants have a strong prima facie case. Therefore, I allow this application unconditionally. The appeal shall arise for mention on 08.05.2001, a waiting the decision of Supreme Court (Larger Bench) in the case of Venus Castings (supra).
(Dictated and pronounced in the open Court.)
