- (1.) The Court : The subject matter of challenge is the certificate dated February 26, 1999 issued under sub-section (1) of Section 90 of The Finance (No. 2) Act, 1998 determining the amount payable by the petitioner- company to settle this case at Rs. 3,63,920.09P.
(2.) The fact of the case in a nutshell is this. The respondent no. 3 passed an order dated July 23, 1996 determining an amount of Rs. 4,87,914.58p towards duty and Rs. 2000/- towards penalty payable under the Central Excise Act, 1944. The petitioner preferred an appeal against the aforesaid order before the Appellate Authority on October 31, 1996 together with an application for stay of operation of the order dated July 23, 1996 passed by the respondent no. 3. The Appellate Authority disposed of the above stay application on June 18, 1997 directing the petitioner-company to deposit Rs. 2,39,925.60p on account of the excise duty. The petitioner-company filed an application dated September 18, 1997 before the Appellate authority for modification of that order. It was rejected on November 30, 1998. In the-meanwhile, the Kar Vivad Samadhan Scheme 1998 (hereinafter referred to as the said Scheme) came into force. The petitioner filed a declaration dated December 30, 1998 under the said Scheme for the purpose of depositing Rs. 2,43,957.30p. for settling his arrears of excise duty. The respondent No. 1 after considering the above declaration of the petitioner-company issued the impugned certificate. It is submitted on behalf of the petitioner-company that the amount directed to be deposited by the petitioner-company for settling his arrears of central excise duty was not assessed correctly under the Kar Vivad Samadhan Scheme, 1998 framed under Chapter IV of the Finance (No. 2) Act, 1998.
(3.) Drawing the attention of this Court towards the provisions of Section 88 of the Finance (No. 2) Act, 1998 (hereinafter referred to as the said Act), it is submitted on behalf of the petitioner-company that Clause-(ii) of sub- section (f) of Section 88 provides that the petitioner-Company was required to pay only 50% of the amount of arrears of duties. Instead, the respondent no. 1 calculated the amount payable by the petitioner-company taking into consideration the direction of the Appellate Authority to pay an amount of Rs. 2,39,925.60p. together with 50% of the rest of the amount. Drawing the attention of this Court towards Explanation to Clause (m)(ii)(b) of Section 87 of the said Act, it is submitted on behalf of the petitioner-Company that where a declarant had already paid either voluntarily or under protest any amount of duties pending any appeal, such payment should not be deemed to be the amount unpaid. But in this case, no amount had been deposited by the declarant in terms of the order passed by the Appellate Authority pending the appeal. So the directions of the Appellate Authority to deposit any amount could not be considered as the amount already paid.;