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2018 (8) TMI 1382 - AT - Central ExciseAbatement claim - period of closure under Rule 96ZP(2) of erstwhile Central Excise Rules, 1944 - rejection on the ground that since the appellant has exercised option to pay lump sum duty under Rule 96ZP(3) of the said Rules - Held that - Learned C.A. for the appellant could not produce any order whereby, the operation of the judgment of 3 members Bench in the case of Supreme Steels and General Mills 2001 (10) TMI 90 - SUPREME COURT OF INDIA has been stayed - In absence of any stay, the ratio laid down thereunder be considered as binding precedent. Appeal dismissed - decided against appellant.
Issues:
- Appeal against Order-in-Original No. NSK/CGST-CS/002/CPM/13/2017-18 dated 29.12.2017 - Claim of abatement under Rule 96ZP(2) rejected due to exercise of lump sum duty option under Rule 96ZP(3) - Reference to Supreme Court case of Bhuwalka Steel Industries Ltd. - Interpretation of Rule 96ZP(3) and Rule 96ZP(2) - Precedents set by Supreme Court and High Courts Analysis: 1. The appeal was filed against Order-in-Original No. NSK/CGST-CS/002/CPM/13/2017-18 dated 29.12.2017, passed by the Commissioner of CGST & Central Excise, Nasik. The appellant, engaged in manufacturing re-rolling products, claimed abatement under Rule 96ZP(2) for a period when the factory was closed, but it was rejected due to opting for lump sum duty payment under Rule 96ZP(3). 2. The appellant argued that a recent reference by a two-member Bench of the Supreme Court in the case of Bhuwalka Steel Industries Ltd. necessitated the matter to be kept in abeyance. However, the absence of a stay from the Supreme Court on the earlier judgment against them meant that the precedent should be followed, as highlighted in the judgment of the Hon'ble Delhi High Court in another case. 3. The Tribunal examined the submissions and noted that the appellant failed to show any stay on the judgment of a three-member Bench of the Supreme Court in a related case. Referring to the judgment of the Hon'ble Bombay High Court in Rajuri Steels Pvt. Ltd., it was established that once an assessee opts for duty payment under Rule 96ZP(3), abatement under Rule 96ZP(2) is not permissible. The Tribunal upheld this interpretation, citing specific clauses and provisions from the rules. 4. The Tribunal emphasized that the proviso to sub-sections (2) and (3) of Rule 96ZP serves different purposes, with the latter governing the rate and manner of duty recovery. The judgment elucidated that the benefit of certain provisions is not available to manufacturers who opt for the payment scheme under Rule 96ZP(3), thereby disallowing abatement claims due to factory closures exceeding seven days. 5. Based on the aforementioned legal analysis and precedents, the Tribunal concluded that the order of the adjudicating authority was valid, and subsequently dismissed the appellant's appeal. The decision was made in line with the established legal principles and interpretations of the relevant rules and court judgments. In summary, the Tribunal upheld the rejection of abatement under Rule 96ZP(2) due to the appellant's choice of lump sum duty payment under Rule 96ZP(3), following established legal interpretations and precedents from higher courts.
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