ORDER
J.H. Joglekar, Member (T)
1. Appeal No. E/3434/2000-Mum is filed by M/s. Suresh Engineering Works against order-in-appeal No. SDK (1300) 152/M.I/2000 dated 25.8.2000 passed by the Commissioner (Appeals), Central Excise, Mumbai. Appeal No. E/3329/2000-Mum is filed by the Revenue against the same order. The facts being the same, both appeals are disposed of vide this common order.
2. Notification 9/99 permits concessional rates of clearance to SSI units utilising modvat credit facility. In terms of this notification a clear option has to be given to the department and the option cannot be withdrawn during the later period of the financial year. Rule 173EE was introduced vide notification 36/99-CE (NT). Where rule 173G requires each clearance to be made on payment of duty, the procedure under rule 173GG permits payment of duty leviable on the goods cleared in a particular month to be paid by the 15th of the next month. The delay in payment attracts interest as also a penalty of Rs.500/- per day. Sub-rule (1)(a) of the said rule requires an intimation to be given of the availment of this facility.
3. Although the assessees were operating under this facility, it appears that they failed to give the required intimation to the department. Show cause notice was issued alleging delayed payments for the months of September and October, 1999, demanding interest of Rs.205/- and seeking imposition of penalty of Rs.21,000/-. Annexure A showed the calculation of short payment. Annexure B contained the allegation that being the second time offender, the assessees were not qualified to continue taking the benefit of the said rule. Annexure C alleged that they had opted for the scheme under the rule without giving prior intimation as required. The allegation is therefore made that all the goods were cleared without payment of duty.
4. The Deputy Commissioner confirmed duty and the calculated interest, imposed a penalty of Rs.21,000/- under rule 173GG(1)(e) and also another penalty of Rs 1500 under rule 173 GG(1)(e). Against this order the assessees filed an appeal. The Commissioner referring to a Supreme Court order retained the orders of interest but reduced the total penalties to Rs.10,000/-. The Revenue have filed an appeal claiming that he had no discretion in terms of the concerned provisions to reduce the penalty. Prayer is made to reinstate the quantum of penalty of Rs.21,000/-. In the appeal from the assessees it was claimed that due to peculiar conditions the assessees were unable to fulfil their obligation. It is claimed that the interest stood paid even prior to the issue of show cause notice. Placing reliance on the same judgment of the Supreme Court which led the Commissioner to reduce the penalty, the plea for waiver is made.
5. We have heard Shri S.S. Pathak, Advocate for M/s. suresh Engineering Works and Shri B.K. Choubey for the Revenue.
6. Rule 173GG required a specific intimation to be given to the department for its utilisation by the assessee. In the absence of such an intimation the procedure under the rule could not have adopted by the assessees. In that case they would continue to follow under the provisions of 173G which required them to clear each consignment on payment of duty. The Revenue in this situation instead of issuing a show cause notice alleging non-payment of duty on every consignment cleared during the period, chose to issue a show cause notice seeking recovery of interest and imposition of penalty under the same rule namely 173GG which could not apply to the assessees in view of lack of the notice for knowledge thereof. Although the assessees do not make this plea, having noticed the situation, we cannot help but take appropriate action.
7. In the result, the appeal from M/s. Suresh Engineering Works is allowed and the appeal from the Revenue is dismissed.
(Dictated in Court)