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TMI Blog2017 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from 1st day of September,1997 to 31st day of March, 1998 was duly paid. It is to be noted that the actual production of any period can be determined only after that period is over. This position has been admitted in the additional affidavit-in-opposition filed by the Assistant Commissioner, Central Excise Department in WP(C) No.2020/99, wherein it is clearly stated that actual production for 1998-99 i.e. any period, can only be determined after that period is over i.e. on or before 1.4.1999. The Commissioner, Central Excise has also admitted this position in his letter dated 12.4.1999. And in respect to financial year 1998-99, the appellant vide letter dated 1.10.1998 opted only once to pay excise duty on actual production. Also from 1.4.98 to 30.9.98 the appellant did not pay duty under the scheme i.e. on lump sum basis. There is nothing on record to suggest that for that year, the appellant chose to pay excise duty on lump sum basis. There is admittedly no provision which prescribes any particular time for opting out from the scheme of paying excise duty on lump sum basis and to offer for making payment on actual production. Therefore, in our considered view, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Rules 96 ZO and 96 ZP were inserted in the Central Excise Rules, 1944 providing for payment of excise duty @750 per metric ton on capacity production. Sub-rule 3 of Rules 96 ZO and ZP gave an option to the manufacturer like appellant to pay excise duty on lump sum basis. The appellant, therefore, vide its letter dated 10.9.1997, opted to pay excise duty on lump sum basis. 4. The validity of Section 3A was, however, challenged by the Steel Rolling Mills Association of India, of which, the appellant is also a member, before the Supreme Court in WP(C) No.133/1998 and the Supreme Court, vide order dated 21.4.1998, observed that it would be open to the manufacturers to submit application for payment of excise duty on the basis of actual production and the same shall be considered by the competent authority in accordance with the rules. 5. It appears that on account of peak hours load restriction of electricity due to paucity of power supply between 4/5 p.m. to 10 p.m. for industries, there was loss of production in the appellant s industry. The appellant, therefore, wanted to pay excise duty on actual production basis and hence, filed WP(C) No.3398/1998. Also, pursuant to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, vide order dated 9.12.2010, partially allowed the appellant s appeal holding that option exercised by it vide application dated 1.10.1998 will be available for the year 1999-2000 and not for the year 1998-99. While doing so, the Tribunal relied upon the decision of the Supreme Court in Union of India vs. Supreme Steels and General Mills (2001) 9 SCC 645, wherein it is held that manufacturer cannot opt twice in the same financial year because the assessment has to be made for the whole year and not in piece meal manner. It is in this background, the appellant has filed the present appeal. 9. On 10.5.2012, the appeal was admitted on the following question of law:- The question involved is whether the appellant had given option for the compounded levy scheme for the Assessment Year - 1998-99 Later, the appellant filed M.C No.478/2013 for framing two more questions of law which were allowed vide order dated 8.1.2014. The additional questions of law allowed to be framed are as under:- A. What is the effect of omission of Rules 96 ZO and 96 ZP with effect from 01.03.2001 along with omission of Section 3A of the Act by the Finance Act, 2001 w.e.f. 11.05.2001 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an illegality in holding that appellant cannot exercise option twice in the light of decision of the Supreme Court in Union of India vs. Supreme Steels and General Mills (supra). The learned counsel for the respondents on the other hand vehemently defended the impugned order passed by the Tribunal. 13. Rule 96 ZO and Rule 96 ZP of the Central Excise Rules provide the procedure to be followed by the manufacturer to pay duty. It also enumerates the manner of calculating and making payment of total amount of duty for the period from 1st day of September, 1997 to 31st day of March, 1998 and thereafter, total amount of duty liability for financial year subsequent to 1997-98. The appellant vide letter dated 10.9.1997 opted to pay excise duty under these Rules on lump sum basis. And it is not in dispute that the total amount of duty liability for the period from 1st day of September,1997 to 31st day of March, 1998 was duly paid. The appellant then vide application dated 1.10.1998 opted out from the scheme of paying excise duty on lump sum basis and sought to pay excise duty on actual production basis. This the appellant did because of various factors, one of them being due to paucit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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