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TMI Blog2017 (8) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect from 01/09/1997, the appellant have opted to pay categorically on the basis of actual production under Section 3 of the Act which is evident from the averments before the Hon’ble Delhi High Court in their writ petition and also evident from their letter dated 21/11/1997 filed before the ld. Commissioner. The appellant is entitled to pay duty under the normal scheme of Section 3 and under the provisions of Section 3A(4) on actual production basis. The appellant will be entitled to consequential benefits of adjustment of duty etc. if any paid in excess in accordance with law - the Adjudicating Authority were directed to determine the duty on the basis of actual production taking into account the returns filed by the appellant and allow adjustment of duty already deposited - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No.43/97-CE dated 30 August, 1997) (A) - Pg. 39 2 Notification No.45/97-CE dated 30 August, 1997) These rules will be called the Hot Re-rolling Steel Mills Annual Capacity Determination (Amendment) Rules, 1997. They shall come into force on the first day of September, 1997. In Sub-rule 3 of Rule 3 the following sub rule shall be substituted. The parameters for determination of the annual capacity of production was modified and also change was made in number of utilized hours with respect to the furnace. 4 Notification No.56/97-CE dated 30 August, 1997) Earlier Notification No.48/97-CE was amended providing any goods manufactured or produced prior to first September 97 and cleared on or after the date the compounded levy scheme will not apply further Explanation - (B), (D) were substituted & Explanation - (E) was added 5 Notification No.44/97-CE dated 30 August, 1997) Of amended Rule 96ZP by providing in Sub-rule 1, in Clause 1, for the word August, wherever it occurs, the word September shall be substituted and further Sub-rule 3 of Rule ZP(3) was substituted. 5. The issue in this appeal is whether the option given earlier in the month of August by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner further observed that the appellant vide letters dated 30/11/1998, 01/01/1999 & 26/02/1999 requested for permission for modification in parameters of Mill No.1. The appellant also submitted the information in prescribed proforma on 22/03/1999 and requested for permission to change the parameters of Mill No.1. The appellant have never contended before Tribunal that they had opted for payment of duty on actual production under Rule 96ZP(1). However, I find vide letter dated 21/11/1997 the party had submitted that in view of Delhi High Court order dated 28/10/1997 they would pay duty of excise on the basis of actual production and actual clearance availing full modvat credit with effect from 1st August, 1997. Further observing that the appellant vide letter dated 29/02/2000 had submitted a chart showing production/clearance/duty deposited during September, 1997 to January, 2000. It is evident from this chart that the party was not paying duty on the basis of ₹ 300/- PMT (which should have been the duty payable under Rule 96ZP(1), but the payment was in lump sum. In any case the party had not filed its option as per rules for their non-payment of duty on the basis of act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit. In view of the facts and circumstances, there is practically no acceptance given by the appellant-assessee for paying duty under the compounded levy scheme and as such the order of the ld. Commissioner is erroneous, demanding duty under the compounded levy scheme. Accordingly he prays for setting aside the impugned order with appropriate relief. 8. Heard ld. D. R. for Revenue who supports the findings of the ld. Commissioner in the impugned order. 9. Having considered the rival contentions, we find that the compounded levy scheme as announced on 1st August, 1997 stood amended and substituted by various notifications with effect from 01/09/1997. We, further, notice that the scheme as originally announced on 01/08/1997 was never acted upon by the Revenue and the amended and/or new scheme of compounded levy on the products manufactured by the appellant was implemented and/or made effective only with effect from 01/09/1997. We also note that the option have to made as specified in Rule 96ZP(4) of the rules with reference to the provisions of Rule 96 ZP(3). Admittedly, Rule 96ZP(3) stood substituted with effect from 01/09/1997. Accordingly, the option given under the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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