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TMI Blog2014 (9) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in terms of the order of the Tribunal and thereafter a show cause notice is to be issued for the period September, 1997 to March, 1998. For this period alone, the appeal is partly allowed by way of remand. - C.M.A. No. 463 of 2007 - - - Dated:- 28-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. M. Rajendran For the Respondent : Mr. V. Sundareswaran Standing Counsel JUDGMENT (Delivered by R. Sudhakar,J.) This appeal is directed against the Final Order No.1425/2005, dated 7.10.2005 passed in Appeal No.E/154/2002 by the Customs, Excise and Service Tax Appellate Tribunal. 2.1. The facts in a nutshell are as under: The appellant is an industry engaged in the manufacture of Ingots and Billets. By Section 81 of the Finance Act, 1997 (Act 26 of 1997), Section 3A of the Central Excise Act, 1944 (for brevity, the Act ) was introduced, which empowers the Central Government to charge excise duty on the basis of capacity of production in respect of notified goods. Notification Nos.30/97-C.E.(N.T.), dated 1.8.1997 and 31/97-C.E.(N.T.), dated 1.8.1997, notified the specified goods under Section 3A of the Act on which duty is to be levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order determining the ACP at 12,800 Metric Tonnes in respect of one furnace. Thereafter, demand notices were issued for the periods (i) April, 1998 to September, 1998; (ii) October, 1998 to February, 1999; (iii) March, 1998 to July, 1999; (iv) August, 1999 to December, 1999; and (v) January, 2000 to March, 2000. 2.7. The above said five demand notices along with the first demand notice issued on 4.5.1998, in all six demand notices, were adjudicated by the Commissioner of Central Excise and a common order was passed in C.No.V/72/15/77/98 Cx.Adj (Commissioner's Order Sl.No.53/2001) on 21.12.2001. In this order, the claim of the assessee that he did not opt for the benefit under Rule 96ZO(3) of the Rules for the period after 1.4.1998 was rejected and the alternative plea of abatement claimed under Section 3A(3) of the Act on the ground that there was stoppage of production on various occasions, was also rejected and duty was demanded, apart from imposing penalty and interest. 2.8. Aggrieved by the said order, the assessee appealed to the Tribunal, which confirmed the order passed by the Commissioner and held as under: 3. After examining the records and hearing ld. SDR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merits of the matter, it would be apposite to refer to Rules 96ZO(3) and 96ZO(4) of the Rules, which read as under: Rule 96ZO(3). Notwithstanding anything contained elsewhere in these rules, if a manufacturer having a total furnace capacity of 3 metric tonnes installed in his factory so desires, he may, from the first day of September 1997 to the 31st day of March 1998 or any other financial year as the case may be, pay a sum of rupees five lakhs per month in two equal instalments, the first instalment latest by the 15th day of each month, and the second instalment latest by the last day of each month, and the amounts so paid shall be deemed to be full and final discharge of his duty liability for the period from the 1st day of September 1997 to the 31st day of March 1998, or any other financial year as the case may be subject to the condition that the manufacturer shall not avail of the benefit, if any, under sub-section (4) of the Section 3A of the Central Excise Act 1944 (1 of 1944): Provided that for the month of September 1997 the Commissioner may allow a manufacturer to pay the sum of rupees five lakhs by the 30th day of September 1997: Provided further that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercised by the assessee under Rule 96ZO(3) of the Rules, held that if the assessee had not opted out of the Compounded Levy Scheme for the subsequent period, namely, 1998-1999 and 1999-2000, it cannot plead that they are outside the purview of Rule 96ZO(3) of the Rules. It was also observed that if the assessee had, in fact, opted out of the Compounded Levy Scheme, they should have paid duty under Rule 96ZO(1) of the CE Rules, which they have not done and, therefore, it is deemed that they are continuing to be under the Compounded Levy Scheme. 7. In paragraph (13) of the order passed by the Commissioner, anent the abatements claimed under Section 3A(3) of the Act on the ground of stoppages of production on various occasions, it was held that there was no abatement claim pending and no claim was submitted by the assessee. That apart, the Commissioner held that the procedure for sanctioning abatement claim is different and distinct and if the assessee makes such claim, it will be dealt with separately. On this premise, all the demands made under the show cause notices were confirmed by the Commissioner. 8. The Tribunal accepted the finding of the Commissioner that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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