SANGHI POLYESTERS LTD Vs. COMMR OF C EX

JUDGEMENT

(1.) The Deputy Commissioner of Central Excise, Hyderabad -III Division, the 2nd respondent herein, by his proceedings dated 29 -1 -2001 withdrew the facility of payment of duty on fortnightly basis earlier granted to the petitioner on the ground of default in the matter of payment for 3 fortnights within a period of one financial year. The said order was assailed before the Commissioner of Customs and Central Excise (Appeals), Hyderabad. The appellate authority also by its Order No. 57/2001 (II -III) C.E., dated 23 -4 -2001 dismissed the appeal and upheld the order of the Deputy Commissioner. Hence, this writ petition assailing the validity of the order of the Commissioner of Customs and Central Excise (Appeals) dated 23 -4 -2001.

(2.) The question that arises for decision falls within a short compass. There is no controversy that only if the petitioner commits 3 defaults within a period of one financial year in the matter of payment of duty, then only it would authorize the Deputy Commissioner of Central Excise, the 2nd respondent herein, to withdraw the facility under Rule 49 read with Rule 173 (G) of Central Excise Rules. Therefore, what should be seen at the threshold is whether the above condition precedent to invoke the power under Rule 49 read with Rule 173 (G) of the Rules existed in this case on the date of Deputy Commissioner passed the order on 29 -1 -2001. In the appellate order, the alleged defaults committed by the petitioner are set out which reads Fortnight Due date Date of presen - Date of release Remarks Ending tation of of TR6 Challan cheque in Bank by Bank 30 -9 -2000 5 -10 -2000 Paid part of the amount on 5 10 -2000. Bal ance amount was paid on 20 10 -2000 along with interest 31 -10 -2000 5 -11 -2000 4 -11 -2000 8 -11 -2000 15 -11 -2000 20 -11 -2000 20 -11 -2000 21 -11 -2000 (After banking hours) 30 -11 -2000 5 -12 -2000 Not relevan 15 -12 -2000 20 -12 -2000 20 -12 -2000 23 -12 -2000 31 -12 -2000 5 -1 -2001 Paid partly on 5 -1 -2001. Bal ance paid with interest on 31 3 -2001.

(3.) As could be seen from the above table itself, the petitioner presented cheques on 4 -11 -2000, 20 -11 -2000 and 20 -12 -2000 towards the duty for the periods ending 31 -10 -2000,15 -11 -2000 and 15 -12 -2000 respectively. In respect of these 3 periods, the due dates were 5 -11 -2000, 20 -11 -2000 and 20 -12 -2000. The narration of the above facts would clearly show that the petitioner presented the cheques on or before the due dates and they were said to have been realised subsequently. The 2nd respondent taking the date of realisation of the cheques as the date of payment, came to the conclusion that the petitioner committed default and so opining passed the impugned order on 29 -1 -2001 under Rule 49 read with Rule 173 (G) of the Rules.