Central Excise Appeal No. 90 of 2011 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Central Excise Appeal No. 90 of 2011 Date of decision: 21.11.2011 Commissioner of Central Excise Commissionerate, 'F' Block, Rishi Nagar, Ludhiana ...Appellant Versus M/s Ganpati Steel & Agro Industries ...Respondent CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. Gurpreet Singh, Advocate for the appellant. **** HEMANT GUPTA, J (Oral). The appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (for short “the Act”) arising out of the order dated 6.7.2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi ( for short “the Tribunal”). The assessee is manufacturer of hot rolled products falling under Chapter 72 of the Central Excise Tariff Act, 1985. During the relevant period, the assessee had opted for Compound Levy Scheme and is, thus, liable to pay duty under Section 3A of the Act. The case of the revenue is that the assessee failed to deposit the duty under the Compound Levy Scheme from the date Central Excise Appeal No. 90 of 2011 -2- *** of determination of annual production capacity. Therefore, the assessee is bound to pay interest on account of delay in deposit of amount of duty and equivalent penalty amount. It may be noticed that in terms of Compound Levy Scheme, there was a provisional assessment of the annual production capacity on 27.2.1998 which was finalised on 27.4.1998. The assessee challenged the said order of determination of annual production capacity before the Tribunal. The Tribunal set aside the order of determination of annual production capacity on 24.12.1998 and directed for redetermination of annual production capacity. The provisional assessment was again made on 5.5.1999 and final annual production capacity was determined on 9.2.2000. Prior to determination of annual production capacity finally, the assessee has deposited the amount of duty in March, 1999 for the period April, 1998 to September, 1998. The revenue claims interest and penalty for late deposit of such duty amount. Mr. Gurpreet Singh, learned counsel for the appellant has relied upon a Division Bench judgment of this Court in Vashisht Ispat Products Vs. CESTAT 2009(235) E.L.T. 25 (P&H) wherein it has been held that the assessee cannot be permitted to raise an argument that the interest should be charged from him, on account of delay in deposit of duty, from the date when the duty was required to be paid. In the aforesaid case also, there was a direction of the Tribunal to redetermine the annual production capacity and in terms of redetermination, the duty was paid. Central Excise Appeal No. 90 of 2011 -3- *** We have heard learned counsel for the appellant and find that the aforesaid judgment is not applicable to the facts of the present case. Firstly in the said case, the assessee has not paid the amount of duty before the capacity was redetermined. Secondly, the assessee in the aforesaid case was served with a show cause notice for payment of the duty but still the assessee had not deposited the duty. In the present case, before determination of the annual production capacity and issuance of show cause notice, the assessee has deposited the duty in March, 1999. In view of above, we do not find any ground which call for interference with the impugned order. Consequently, the appeal is dismissed. (Hemant Gupta) Judge November 21, 2011 (G.S.Sandhawalia) Pka Judge