2005 (12) TMI 472

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..... ntentions canvassed by both the sides. We have, therefore, taken up the appeal itself for final disposal. 2. The grievance of the appellant is that the Commissioner did not consider the claim of the appellant under Section 3A(4) of the Central Excise Act, 1944 and failed to determine the actual production as contemplated therein, for the purpose of redetermining the amount of duty payable by the assessee with reference to actual production at the rates specified under sub-section (3) of Section 3A. 3. There is no dispute over the fact that the appellant had not opted to pay the lump sum amount as contemplated under sub-rule (3) of Rule 96ZO framed under the said rules. Since such an option was not exercised under sub-rule (3) of Rule 96 .....

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..... referring to the provisions of sub-section (4) of Section 3A, the Commissioner observed that inspite of that provision, the noticee have never disputed the capacity fixed by the Commissioner, and that, had they been aggrieved against the capacity fixed by the Commissioner, they should have approached the department, taking recourse to sub-section (4) to Section 3A for redetermination or should have at least challenged the said fixation by way of appeal. He then proceeded to observe that there is no provision to fix the duty liability based on actual production claimed by an assessee in the entire spectrum of compounded levy scheme. 6. It appears from the record that the appellant had sent a letter on 31-3-98 to the Assistant Commissioner .....

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..... simply observing that in support of their demand, they have come up with variety of reasons responsible for lesser production and that most of them were based on humanitarian grounds and most irrelevant in the context of rules on the subject. He did not consider the claim which was required to be considered for determining the actual production, as required by the provisions of sub-section (4) of Section 3A of the Act. It appears from the observations made in paragraph 12 of the impugned order by the learned Commissioner that no effort was made to ascertain whether the evidence produced by the assessee in support of his claim made under sub-section (4) of Section 3A was reliable and whether the actual production of the notified goods was lo .....

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