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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
C.N.B. Nair, P.G. CHACKO, Smt. K.K. Usha, JJ.
Commissioner of Central Excise, Jaipur-I -Appellant
Versus
Genus Overseas Electronics Ltd. -Respondent
Final Order No. A/266/2003-NB(C) Appeal No. E/1409/2002-NB E/CO/319/2002-NB
Decided On : 10-03-2003
Per C.N.B. Nair : The issue raised in this reference [reported in 2002 (53) RLT 429 (CEGAT-Del.)] is as to what constitutes "payment" of Central Excise Duty by an assessee, i.e., whether the deposit of Cheque towards payment of duty in the authorized Bank satisfies the requirement or whether the requirement is satisfied only when the Cheque is cleared and the amount deposited to the Government Account. Provisions of Rule 8 [sic-9] 49 and 173G of Central Excise Rules, 1944 have been referred to.
2. Rule 8 of Central Excise Rules [2002] which relates to "manner of payment of duty" requires that duty on goods removed from the factory or warehouse during the first fortnight of the month shall be paid by 20th of that month and the duty on the goods removed from the factory or the warehouse during a month shall be paid by the 5th day of the following month. In the context of this requirement, dispute arose as to whether deposit of Cheque by the dates indicated in the Rule was sufficient or whether the Cheques so deposited should have been cleared and credited to the Government Account. The Adjudicating authority took the view that only upon clearance of the Cheque it could be held that payment of duty had been made by an assessee. The Commissioner (Appeal) took the contrary view and held that deposit of the Cheque satisfied the requirement. When the matter came up in appeal by the Revenue before a Division Bench of this Tribunal, it was contended that in view of the provisions of Central Government Account (Receipt and payments) Rules, 1983, in particular Rule 20, only upon clearance of the Cheque, the requirement would be met. The Division Bench referred the matter to the Larger Bench since the earlier decision of this Tribunal in the case of Hemnil Metal Processors Pvt. Ltd. Vs. CCE, Pune reported in 2002 (143) ELT 679 had been rendered without taking into account the provisions of Central Government Account (Receipt and Payments) Rule, 1983.
3. We have heard Shri Rajeev Tandon, Learned SDR and Shri B.L. Narasimhan, learned Advocate in the matter and perused the records. The submission on behalf of the Government is based on the Provisions of Rule 20 of Central Government Account (Receipt and Payments) Rules, 1983. This Rule reads as under:-
"Rule 20: Date of receipt of Government revenues, dues, etc. Government dues tendered in the form of a cheque or draft which is accepted under the provisions of Rule 19 and is honoured on presentation, shall be deemed to have been paid-
(i) where the cheque or draft is tendered to the bank, on the date on which it was cleared and entered in the receipt scroll;
(ii) where a cheque or draft is tendered to a departmental officer (in cases where such tendering is permissible or required under relevant departmental provisions) on the third working day after its presentation;
(iii) if it is sent by post in pursuance of instructions to make payment by post, on the date on which the cover containing it is put into the post.''
Based on the above Rule, the learned SDR submitted that Government dues tendered in the form of a Cheque or Draft shall be deemed to have been paid on the date on which it was cleared and entered in the receipt Account. As against this the learned Counsel for the assessee has pointed out that the requirement under Rule 8 of Central Excise Rules was distinct from the requirement under the Central Government Account (Receipt and Payments) Rules,1983. He pointed out that Rule 8 of Central Excise rules related to manner of payment of Central Excise Duties. The learned Counsel pointed out that this very issue was the subject matter of a decision by the High Court of Andhra Pradesh in the case of Sanghi Polyester Ltd. Vs. CCE reported in 2001 (134) ELT 344 (AP) and the High Court had held that the date of receipt of Cheque should be treated as the date of payment and not the actual day on which the Cheque is realized. The learned Counsel also referred to the decision of the Apex Court in
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