RAJ AND SAN DEEPS LIMITED Vs. CCE

JUDGEMENT

(1.) The appellant is a manufacturer of non -alloy steel ingots which is liable to Central Excise duty. The impugned order has held that the appellant failed to pay duty of over Rs. 2.10 crores for the period September '97 to March 2000, under the compounded levy scheme. Accordingly, the order demanded the said duty amount as well as imposed as equal amount as penalty and demanded interest.

(2.) The present appeal contends that the amount demanded under the order is not due at all and for that reason the duty and other demands made under the impugned order are required to be set aside. It is pointed out that the appellant was paying duty under Rule 96ZO(3) of the Central Excise Rules and that Rule envisages payment of a fixed sum for furnace capacity of 3 MT, and prorata payment if the capacity is more or less the 3 MT. It is being contended that the appellant's capacity was only 2.5 MTs during the relevant period and duty due on that capacity had been paid. With regard to the alleged additional capacity of 4 MT it is being pointed out that the appellant had informed about the closure of 1 MT furnace on 7.8.97 (before the commencement of compounded levy) and the closure of 3 MTs capacity furnace was intimated on 1.9.97. Further, on 21.5.98 the appellant also requested the Commissioner to allow it to dismantle the two closed furnaces.

(3.) During the hearing of the case, learned Counsel for the appellant took us through the record to show that, in addition to the above intimations of closure of two furnaces, Central Excise Officers had visited the appellant's factory several times during the relevant period and they had certified to the fact of closure of the furnaces in question. Learned Counsel has submitted that in these facts and circumstances, a finding regarding a higher capacity cannot be sustained. The learned Counsel has submitted that the Commissioner's finding that; despite the appellant's request for permission to dismantle the furnaces, they were liable to duty, including on the capacity of the closed furnaces, for the reason that "they have submitted no evidence that they ever pursue the matter with the Commissioner's office for grant of permission" is perverse and cannot be allowed to stand because that would be allowing a party to take advantage of its own wrong.