2005 (8) TMI 564

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..... tices for the period 24-9-99 to 31-3-2000 and confirmed the duty of Rs. 8,44,361/-. The duty has been worked out on the basis of the Annual Capacity of Production which was determined for the previous year. The appellants challenged the above order on the ground that they had actually paid duty on the actual clearance for the relevant period. Further they contended that the duty for 1999-2000 cannot be demanded on the basis of the Annual Capacity of Production fixed for the earlier period. In other words, the contention of the appellants is that for every year the capacity has to be determined by the Commissioner. The Commissioner (Appeals) in his order rejected the appellant s contention and up hold the Order-in-Original. Hence the appella .....

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..... ion 3A(4) for the subsequent period. In this regard, the Apex Court in the case of CCE C v. Venus Castings (P) Ltd. [2000 (117) E.L.T. 273 (S.C.)] has held that the schemes contained in Section 3A(4) of the Act and Rule 96ZO(3) or Rule 96ZP(3) of the Excise Rules are two alternative procedures to be adopted at the option of the assessee. Thus the two procedures do not clash with each other if the assessee opts for procedure under Rule 96ZO(1), he may opt out the procedure under Rule 96ZO(3) for a subsequent period. Even though opting out of the procedure under Rule 96ZO(3) for the subsequent period was not intimated to the Department, the procedural lapse on the part cannot be a ground on the part of the department to saddle them the duty .....

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..... nual capacity of production is fixed the appellants cannot claim entitlement to pay duty on the basis of actual production. Sub-section (4) and sub-section (5) clearly envisage a situation where actual production is less than the annual capacity of production so fixed under the provisions of sub-section (2). It is not the case of the Revenue that the appellants removed the goods without payment of duty. Even though in 1998-99, he opted for payment of duty on the basis of Annual Capacity of Production for the subsequent year, he paid duty on the basis of actual production. The appellants could have informed these to the Department. But on account of this lapse, the demand of duty based on the previous year s Annual Capacity of Production .....

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