2002 (4) TMI 380

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..... d M/s. Dina Metals were directed to deposit an amount of Rs. 70,00,000/- (Rupees seventy lakhs) as a condition of pre-hearing of their appeal. 2. Shri R. Santhanam, ld. Advocate, along with Shri B.N. Chattopadhyay, ld. Consultant appearing for the appellants in support of the miscellaneous applications submit that the said stay orders have proceeded by taking note of the JDR's submissions that the appellants have opted to pay duty in terms of the provisions of Rule 96ZP(3) and have opted out of the same only w.e.f. 1-3-98. He submits that the above plea of the ld. JDR is against the factual position inasmuch as the appellant never opted for payment of duty under the provisions of Rule 96ZP(3). They have always paid duty on actual prod .....

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..... of Central Excise v. Venus Castings Pvt. Ltd. reported in 2000 (117) E.L.T. 273 (S.C.), will not apply inasmuch as in that case, it was held that the appellants having opted for payment of duty in terms of the procedure, envisaged under Rule 96ZP(3) of Central Excise Rules, 1944 cannot claim the benefit of determination of Production Capacity under Section 3A(4) of the Act. Inasmuch as the appellants have opted for payment of duty under Rule 96ZP(1), the provisions of Section 3A(4) cannot be excluded. In fact, the Supreme Court in the case of Venus Castings has observed in Para 8 of their judgment that if the Annual Capacity determined by the Commissioner is disputed by the assessee, the Commissioner is required to re-determine the same, a .....

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..... excess the duty so re-determined, the assessee shall pay the deficiency or be entitled to a refund as the case may be. A reading of the above two sub-sections to Section 3A show that the same enables the manufacturer to pay duty on the basis of the actual production, if the same is less than the production determined under sub-section (3). Sub-section (2) requires determination of the Annual Capacity of Production, which shall be deemed to be the Annual Production of such goods by the factory in question. As such, it is seen that for finding out whether the actual production is less than the Annual Capacity of Production, it is first necessary to fix the Annual Capacity of Production in terms of the sub-section (2) of Section 3A. As such, .....

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