9911796707
TMI Blog2012 (5) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... of the erstwhile Central Excise Rules, 1944, wherein they had intimated to the Commissioner of Central Excise, Kolkata-II that they wish to avail of the Scheme described under sub-rule (3) of Rule 96ZP for full and final discharge of their duty liability for the manufacture of hot re-rolling products of non-alloy steel under Section 3A of the Central Excise Act, 1944. They had furnished details of their furnace, as required for determination of capacity under Hot Re-rolling Steel Mills Annual Capacity of Determination Rules, 1997. Consequently, the Commissioner of Central Excise had determined the Annual Capacity of their Unit as 2709.215 MT and fixed the duty liability for the year, 1997-98, i.e.Ist September, 1997 to 31st March, 1998 at Rs.4,74,110/- and monthly duty at Rs.67,730/-. Similarly, for the period from 1st April, 1998 to 31st March, 1999, the duty liability was fixed at Rs.8,12,760/- and monthly liability at Rs.67,730/-. On default in payment of duty, in accordance with said fixation, consequently, they were issued with three show cause notices dated 03.11.1999, 04.04.2000 and 27.02.2001 demanding duty of Rs.4,06,380 for the period from April, 1999 to September,1999, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that during the period from 01.09.1997 to 31.03.2000, they were under the compounded levy scheme as they are engaged in the manufacture of MS Rods and Bars falling under Chapter sub-heading 7214.90 of CETA. In terms of the provisions of sub-section (2) of Section 3A of the Central Excise Act, 1944, the duty was required to be paid on the said goods on the basis of determined capacity of production by the Commissioner of Central Excise under Hot Re-rolling Steel Mills Annual Capacity of Determination Rules, 1997. Further, he has submitted that as per sub-section (4) of Section 3A of the CEA,1944 if the actual production of notified goods is less than the production determined under sub-section (2) of Section 3A of CEA,1944 then the Commissioner of Central Excise after giving an opportunity to the assessee, re-determines the amount of duty payable by the assessee with reference to such actual production. He has further submitted that in terms of the provisions of sub-rule (1) of Rule 96 ZP of the erstwhile Central Excise Rules, 1944 the assessee was required to debit an amount calculated @ Rs.400/- per MT at the time of clearance under Hot Re-rolled products of non-alloy steel und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of the above-cited judgements, the learned Consultant submitted that the assessee may opt for an actual production under the provisions of sub-section (4) of Section 3A of the CEA,1944 and in that case, learned Commissioner shall determine the actual production of the rolling mills. It is the submission of the Appellant that they had availed the option for payment of Central Excise Duty on the basis of actual production under the provisions of sub-section (4) of Section 3A of the CEA, 1944 and since the option was exercised in the month of August,1998 and they have been paying the Central Excise Duty under the provisions of Rule 96ZP(3), the duty would be from the next financial year, i.e.from Ist April, 1999. Further, they have submitted that during the course of proceeding before the High Court, the Respondent (Revenue) filed an affidavit wherein it was contended that the option was not exercised for the period in dispute, but for the next financial year, 1999-2000. On the basis of the affidavit-in-opposition given by the Revenue before the Hon ble High Court, it is clear that during the financial year, 1999-2000, the duty was paid by the Appellant under actual producti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the batch of appeals filed by the Association of Steel Manufacturers before the Hon ble Supreme Court. However, the Appellant continued to pay duty @Rs.300/- per MT instead of Rs.400/- per MT, the rate applicable for discharging duty under Rule 96ZP(3) of the Central Excise Rules. He has further mentioned that the Appellant had discharged the duty @Rs.400/- for the period, 1999-2000 only after filing the Appeal before this Tribunal. He has submitted that the learned Commissioner has consistently determined the Annual Capacity of Production on the basis of information submitted by the Appellant and accordingly arrived at the duty liability of the Appellant in terms of Rule 96ZP(3) of the said Rules successively for the years, 1997-98 and 1998-99, which is also applicable for the year, 1999-2000. The Appellant had at no point of time filed any appeal against the said determination. Hence, the Order directing recovery of duty pursuant to the said Order is valid and sustainable in law. 7. Heard both sides and perused the records. We find that there is no difference in the approach of both sides on the principle of law applicable to the facts of the present case. It is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept. 97 to March 98 (vide Sl. No.2 to 8 dt.30.04.98). However, they continued to discharge duty @Rs.300/- per MT, as was applicable for clearance of goods exercising option under Rule 96ZP(3) of the said Rules and not 96ZP(1) of the said Rules to which applicable rate of duty was Rs.400/- per MT at the material time. Thereafter, they have not specifically communicated to the Department regarding payment of duty, exercising their option under any of the Rules. The Commissioner in his successive Orders for the respective financial years including the period, 1998-99 had fixed the amount payable per month @Rs.67,730/- on the declaration made by them at the beginning i.e.on 18.08.1997 under Rule 96ZP(3) of the said Rules. The dispute centers around payment of duty for the period, 1999-2000. It is argued by the Appellant that they had exercised their option under Rule 96ZP(1) through their letter dated 19.08.1998. Countering the said argument, learned AR for the Revenue has argued that the said amount was paid pursuant to the Interim Order of the Hon ble Supreme Court and also not under Rule 96ZP(1), as the rate of duty applied towards duty liability was Rs.300/- per MT and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
