CCE Vs. FAIRDEAL AGRO INDUSTRIES

JUDGEMENT

(1.) IN his appeal, the Revenue has contested the correctness of the impugned Order -in -Appeal passed by the Commissioner (Appeals) only to the extent of setting aside of the penalty against the respondents. The respondents have filed cross objection and claimed decision on merits.

(2.) WE have gone through the cross objection and heard the learned JDR. From the record, it is evident that the respondents are running hot re -rolling mills. During the relevant period, i.e. 1998 -99, they were working under the compounded levy scheme. The Commissioner vide order dated 19.9.97 provisionally determined the ACP of the respondents mills and before the finalization of the ACP, the Superintendent in the meanwhile, issued show cause notice to the respondents for payment of duty on the basis of provisional determination of ACP but they did not make full payment. They, as we find from the impugned order, out of the total duty of Rs. 1,49,112, paid only Rs. 12,500 vide TR challan dated 12.3.99 and still duty amount of Rs. 1,36,612 is outstanding against them. Under these circumstances, the learned Commissioner (Appeals) could not set aside the imposition of penalty in toto on the respondents, as they were liable to pay the duty under the Provisional Determination of ACP Order dated 19.9.97.

(3.) IN the Cross Objection, the respondents have pleaded financial hardship and also alleged that finalisation of assessment finally is essential for imposition of penalty. They have also referred to the ratio of law laid down in the case of CCE v. Transformers and Electricals, 1998 (103) ELT 575; National Standard Cables v. CCE, 1999 (112) ELT 99, 2000 (123) ELT 909 and ITC Ltd. v. CCE, 2002 (146) ELT 336 wherein it has been observed that unless the provisional assessment is finalized, no demand is legally sustainable. But the law laid down in those cases is not applicable to the case of the respondents. In those cases, it has been also observed that differential duty cannot be demanded unless the provisional assessment of an assessee is finalized. But in the case in hand, the respondents were directed to make the payment as per their provisional assessment but the failed to do so. It is not a case where any differential duty on finalisation of ACP has been demanded from them. The financial hardship of the respondents cannot be taken into account as they are liable to pay the duty under the law. It is for them to arrange the finance.