R S ENTERPRISES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This order will dispose of C.E.A. No. 64 of 2005 and C.E.A. No. 78 of 2005, which arise out of the same order of the Customs, Excise and Service Tax Appellate Tribunal dated 8.10.2004.

(2.) The assessee was governed by 'Compounded Levy Scheme' under Section 3A of the Central Excise Act, 1944 read with relevant rules i.e. Central Excise Rules, 1944 (for short, "1944 Rules"). The excise duty was determined for the furnace in question. The assessee contended that the furnace was 'batch type' and not 'pusher type'. The revenue found provisionally as well as finally that the furnace in question was 'pusher type' and higher duty was liable to be paid, while the assessee had paid C.E.A. Nos.64 & 78 of 2005 -2- duty by treating the furnace as 'batch type' at lower rate. Accordingly, while confirming the demand of duty, the assessee was held liable to pay higher duty along with interest and penalty. The assessee had deposited the duty on 13.3.1999, while duty had become payable on 15.10.1997.

(3.) The Commissioner (Appeals), affirmed the levy of duty but reduced the amount of penalty to 50%. It was held that penalty was imposable as the assessee had failed to pay the duty in spite of there being no stay of the liability as determined. The said view has been affirmed by the Tribunal.