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TMI Blog2010 (5) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... plying Rule 96-ZO(1) of Central Excise Rules, 1944 taking 39 production days which was correct. He found that there was nothing in the letters or intimation received by the Department intimating time of stoppage of production when the appellant claimed that the working days of production were 33 days. Duty demand of Rs. 2,24,159/- was accordingly held to be correctly determined by the learned Adjudicating Authority with the consequence of penalty for non-discharge of duty amount payable by 31st March, of the relevant year. 3. Learned Adjudicating Authority raised the demand on the basis of Annual Capacity determination of the production taking 39 days as the production days. The demand was based on the capacity determined by the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Steels General Mills reported in 2001 (133) E.L.T. 513 (S.C.) and in the case of Commissioner of Central Excise Customs v. Venus Castings (P) Ltd. reported in 2000 (117) E.L.T. 273 (S.C.) for its contention. Revenue s prayer is not to relieve the Appellant from penalty as well as duty and interest. For that, Revenue relies on the case of Pee Aar Steels (P) Ltd. v. CCE, Meerut reported in 2004 (170) E.L.T. 406 (All.) 6 Heard both sides and perused the record. 7. There is no difficulty to understand the spirit of Section 3A of Central Excise Act, 1944 prevailing at the material time. That Section prescribed Compounding Levy Scheme applicable to certain notified goods. The Scheme so prescribed was embedded to sub-sections (3) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Union of India v. Supreme Steels General Mills reported in 2001 (133) E.L.T. 513 (S.C.). It would be proper to reproduce para 3 of the judgment for appreciation of the ratio laid down by the Apex Court :- In so far Rule 96-ZO is concerned, Shri A.K. Ganguli, learned Counsel appearing on behalf of the manufacturers submitted that the part of sub-rule 3 which provides that in case excise duty is paid according to the said sub-rule in that event the manufacturer shall not avail of the benefit under sub-section (4) of Section 3A of the Central Excise Act, 1944 is bad. The relevant part of sub-rule (3) of Rule 96-ZO reads as under :- (3) Notwithstanding anything contained elsewhere in these rules, if a manufacturer having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the manufacturer to opt for payment of excise duty in accordance with sub-rule 3 of Rule 96-ZO on the basis of total furnace capacity installed as provided therein. The manufacturer cannot opt twice during one financial year first choosing to pay in accordance with sub-rule (3) of Rule 96ZO and thereafter to switch over to actual production basis under Section 3A(4) of the Act, in case it is less than the duty payable under sub-rule (3) of Rule 96ZO. The said sub-rule is quite clear that the option under it is available subject to the condition that once having opted for it, benefit if any under sub-section (4) of Section 3A of the Central Excise Act, 1944 shall not be available. We find that the controversy sought to be raised stands fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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