9911796707
TMI Blog2003 (8) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... icate the date of closure, date of re-start, the closing and opening stock position; that in view of there being no electricity connection given by the State Electricity Board, after the disconnection with effect from 4-2-99, the question of giving meter reading on or after that date does not arise; that but prior to that date, electricity meter reading was given in all the respective communications which had been duly verified and accepted by the jurisdictional Excise Authorities; that they had installed a D.G. Set about the installation of which the Department was informed under their letter dated 26-10-98; that DG set was installed with an electric meter to indicate the meter reading; that one Chartered Engineer, Shri Manohar Lal, had carried out the inspection and verification and had also sealed the electricity meter installed with the D.G. Set and gave a Certificate dated 15-11-98 to that effect; that the jurisdictional Excise Officers have also visited the factory on each occasion of closure and re-start and found that the unit remained closed and have accepted their claim for the period of closure by signing the RG-I registers. 3.1 The learned Advocate, mentioned that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory. He also mentioned that the observation of the Commissioner, in the impugned Order, that reading shown by meter in DG Set does not appear to be reliable as the said meter was not sealed on the pattern of meter installed by SEB, is hypothetical since the Certificate issued by the Chartered Engineer shows that he has put the seal on the meter on 5-11-1998; that the officers had mentioned the meter reading at the time of closure and the stock position in most of the remarks; that again at the time of restart, the meter reading has been noted and so also the stock position; that had there been any tampering of the meter, the officers would have certainly remarked/reported; that since no such thing has happened, the meter reading has to be treated as correct and no adverse inference can be drawn from the fact that meter is not installed by SEB. He finally mentioned that Meerut Commissionerate has mentioned in the Instructions relating to abatement of duty that in case of furnace run by D.G. sets reading of the meter showing units should be given. All such units are required to get such meters installed on their D.G. sets. He contended that this shows that use of D.G. set is legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer, who is a Respondent herein, having availed of the procedure for payment of duty under the Act in terms of Rule 96ZO(3) of the Central Excise Rules cannot claim the benefit of Section 3A(4) for determination of actual production and re-determination of amount of duty payable by him with reference to the actual production at the rates as specified in the said Section. The Supreme Court has also observed as under : Now we are informed at the bar that the very questions arising in the cases before us stand referred to a Larger Bench by the Tribunal for deciding (i) whether there is any conflict between the provisions of sub-section (4) of Section 3A of the Act and sub-rule (3) of Rule 96ZO of the Central Excise Rules, and (ii) whether a manufacturer who has exercised the option to make payment of amount based on total furnace capacity installed in his factory under sub-rule (3) of Rule 96ZO and not on the basis of annual capacity of production can make an application for determining the actual production during the period his aforesaid option is in operation . The learned Advocate contended that the Supreme Court has not dealt with the issue of abatement under proviso to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Rules ibid while intimating the closure and starting of the Induction Furnace during the period. No Appeal has been filed by the Revenue against the said finding of the Commissioner in the impugned Order. The Revenue thus cannot raise the issue that the benefit of abatement of duty is not available to the Appellants as they were paying duty in terms of the provisions of Rule 96ZO(3). 8. Moreover, as pointed out by the learned Advocate, Rule 96ZO(3) contained the following condition at the time the said Rule was inserted in the Central Excise Rules by Notification No. 27/97-C.E., dated 25-7-1997 : Notwithstanding anything contained elsewhere in these rules, ........ he may ..... pay a sum of Rs. five lakhs and the amount so paid shall be deemed to be full and final discharge of his duty liability subject to the condition that the manufacturer shall not avail of the benefit, if any, under proviso to sub-section (3) or under sub-section (4) of Section 3A of the Central Excise Act, 1944. The Rule was amended by Notification No. 44/97-C.E. (N.T.), dated 30-8-97. The amended Rule 96ZO(3) reads as under : Notwithstanding anything contained elsewhere in these Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court in the case of CCE, Vadodara v. Dhiren Chemical Industries, 2002 (139) E.L.T. 3 (S.C.) that regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue. (emphasis provided). There is nothing on record to show that the said circular was not in force during the relevant period. Accordingly the Revenue cannot claim that the Appellants would not be eligible for abatement of duty as they were paying duty in terms of Rule 96ZO(3). 9. We also agree with the learned Advocate that clauses (b) and (d) of sub-rule (2) of Rule 96ZO nowhere provides that abatement of duty would be available only if the manufacturer intimates the reading of the electricity meter installed by the State Electricity Authorities or Board. Clauses (b) and (d) reads as under : (b) the manufacturer shall intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, immediately after the production in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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