COMMISSIONER OF CENTRAL EXCISE Vs. KISAN ALUMINUM UDYOG

JUDGEMENT

(1.) The Revenue has filed this Appeal against Order -in -Appeal No. 261 -262/2003 dated 17.10.03 by which the Commissioner (Appeals) has allowed the revision of ASP to the respondents M/s. Kisan Aluminium Udyog.

(2.) Shri D.N. Choudhary, learned Senior Departmental Representative, submitted that the respondent manufacture aluminium circles; that they filed ASP with the Range Superintendent for the financial year 1998 -99 in respect of rolling machines of the size 36" length in terms on (sic, of) Notification No. 109/94 -CE dated 13.5.94; that they started paying the Central Excise duty at the rate of Rs. 10,000 per month per rolling machine with effect from 1.4.98; that subsequently the respondents consequent upon the reduction of rolling machine size from 36" to 29.8", filed another ASP and claimed compounded levy at the rate of Rs. 7500 per month; that the Dy. Commissioner under Order -in -Original No. 105 -106/99 dated 14.9.99 demanded the duty on the ground that the ASP once fixed under Rule 96 ZA of the Central Excise Rules, 1944 cannot be changed till the expiry of the 12 months period; that, however, on Appeal filed by the respondents, the Commissioner (Appeals) under the impugned order has allowed the revision of ASP relying upon the decision of the Tribunal in the case of Jupiter Industries v.CCE, (Jaipur) 2001 (138) ELT 1018 (Tri). Learned Senior Departmental Representative, further, submitted that the compounded levy is a special procedure for payment of Central Excise duty in which the manufacturer discharges the duty liability on the excisable goods manufactured by him by making payment of amount fixed per machine under the relevant excise Rules; that the rates per machine are fixed having regard to average production per machine; that the rates per machine arc fixed under Notification, issued in terms of Rule 96 ZB having regard to the average production per machine; that these Rules in no way stipulate that any sum at the already fixed compounded rate was payable towards duty for a machine in respect of which the parameters for determining the production capacity has undergone a change; that law laid emphasis on fixation of ASP for a minimum period of 12 months; that the power to grant permission for ASP less than 12 months is with the Commissioner and the assessee was required to get the permission of the Commissioner, that they had unilaterally started to pay lower duty without getting permission from the Commissioner and, accordingly, the demand of duty short paid by them is correct.

(3.) Countering the argument Shri Alok Arora, learned Advocate, submitted that after fixing the ASP the respondent had informed the Range Superintendent under their letter dated 16.4.98 that they also intend to reduce the roller size from 36" to less than "30" within one month's time, that the respondents under letter dated 23.4.98 informed the Range Superintendent that they have reduced the size of roller to 29.8" and requested him to verify the same, that the revised ASP submitted by them is forwarded to the Commissioner (Appeals) by the Superintendent on 27.4.98; that the show cause notice has been issued to them on the ground that their ASP cannot be considered for a shorter period. Finally, he submitted that the issue has been finally decided by the Appellate Tribunal in the case of CCE Meerut I v. Jai Bharat Industries, 2003 (158) ELT 845 (Tri).