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TMI Blog2018 (2) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Mudimanan, Adv. For the Respondent - Shri S. Govindarajan, AC (AR) ORDER Per: Bench The issues involved in both appeals being common, are heard together and disposed by this common order. 2. M/s. Chamundi Steel Castings (hereinafter referred to as 'assessee') is engaged in the manufacture of MS ingots and billets of non-alloy steel in their factor at Hosur. During the period from 01.09.1987 to 31.03.2000 Compounded Levy Scheme (hereinafter referred to as "CLS') was in force with regard to the impugned steel products and duty had to be discharged on the basis of Annual Capacity of Production (hereinafter referred to as "ACP") fixed by the competent Central Excise authorities. During the period, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that for the earlier period, the Hon'ble High Court had given categorical finding that the claim of abatement has to be calculated on pro-rota basis. Therefore, the Commissioner had granted abatement for the earlier period upto 31.12.1998, following the observations of the Hon'ble High Court. The same view has to be applied to the latter period involved in Appeal No.E/00130/2009 and therefore, the assessee is eligible for abatement on pro-rata basis. With respect of payment of interest and imposition of penalty, learned counsel submits that provisions of 96ZO, 96ZP and 96ZQ have been struck down as ultra vires by the Hon'ble Supreme Court in the case of M/s. Shree Bhagwati Steel Rolling Mills Vs Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than or less than 3 MTS or if there is any change in total capacity, then the manufacturer shall pay the amount calculated on pro-rata basis. Rule 96ZO(3) of the Central Excise Rules, 1944 reads as follows:- "(3) Notwithstanding anything contained also in these rules, if a manufacturer having a total furnace capacity of 3 MTS installed in his factory so desires, he may, from the first day of September, 1997 to 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 15th day of each month/ and the second instalment latest by the last day of each month, and the amount so paid shall be deemed to be full and final dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. For the same reasons, we do not find any grounds to interfere with the impugned order. 9.4 The appeal no.E/00513/2011 filed by the department is, therefore, dismissed. 9.5 In consequence, we hold that the same ratio is applicable to the period subsequent to 31.12.1998, which is involved in appeal E/00130/2009 filed by the assessee. Therefore, the claim of the assessee for pro-rata basis is to be allowed, which we hereby do. Following the judgment in the case of M/s. Shree Bhagwati Steel Rolling Mills (supra), we hold that the demand of interest as well as imposition of penalties is unsustainable. The same is set aside. The learned counsel for the appellants has also requested that the matter may be remanded to the Commissioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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