9911796707
TMI Blog2023 (5) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... Capacity of Production (ACP) of the Appellant was provisionally fixed as 587.83 MT. Subsequently, the Appellant submitted Chartered Engineers Certificate vide letter dated 01/05/1998, based on which the ACP was revised as 1055.435 MT. Thereafter a joint verification was done on 12/04/2000, to verify the correctness of the declared parameters and some differences were observed. On the basis of the verified parameters, the ACP was finally fixed as 1106.82 MT. As there was no change in the plant and machinery from Sept 1997 to 12/04/2000, the parameters found in joint verification was declared as correct and accordingly the Appellant was asked to pay duty as per the final ACP of 1106.82 MT, fixed. 2. The Appellant did not file any opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent period shall also be 1106.820 MT per financial year. The differential C.Ex duty should be paid by the assessee accordingly forthwith. 31. Consequently, I confirm the demand for differential for C.Ex duty of Rs. 2,94,196/- ((Rupees two lakh ninety four thousand one hundred ninety six) only against the assessee, M/s. Hazra Iron Works under Rule 96ZP(1)(3) of the erstwhile C.Ex Rules 44 and direct the assessee to pay the amount forthwith. 32. I also impose penalty of Rs.2,94,196/- (Rupees two lakh ninety four thousand one hundred ninety six) only equivalent to the outstanding C.Ex duty involved in terms of Rule 96(ZP(1) and 96ZP(3) of the erstwhile C Ex Rules 44 to be paid forthwith. 33. I also order the assessee to pay interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been extinguished the appellant was eligible to pay the duty on actual production in terms of the provisions of section 3A(4) for the years 1997-98 & 1998-99. For the year 1999-2000, since they submitted the option to pay duty under Rule 96ZP(3), they are required to pay the duty on the basis of determination of annual capacity of production under the provisions of Hot-Rolling Mills Annual Capacity Determination Rules, 1997. Accordingly, they contended that the order of the Ld. Commissioner is not proper and valid. In case, they are allowed to pay the duty on the basis of the actual production, they are not required to pay any differential duty as confirmed in the Impugned Order. 6. The Departmental Representative reiterated the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual production under the provisions of Section 3A(4) of the Central Excise Act, 1944. Sub-section (4) of Section 3A postulates that if the actual production is less than the determined capacity of production, then the Appellant is entitled to pay the duty on the basis of the actual production. 10. The contention of the Department is that the Appellant themselves submitted a revised calculation of ACP by submitting CA certificate and never opted for fixation under subsection (4) of Section 3A of the C.E. Act,44 prior to filing of Appeal against Order-in-Original No. 531/COMMISSIONER/CE/Kol-III/ADJN/2003 dated 30.04.2003 passed by the Commissioner of Central Excise, Kolkata-III. In terms of their own submission of Annual Capacity of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding anything contained in section 3, where the Central Government having regard to the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this section. (4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills v. Commr. Of Central Excise [2015 (326) E.L.T. 209 (S.C.)] and argued that interest and penalty are not liable to be paid in such cases. We find merit in the argument of the assessee. The Hon'ble Supreme Court in the above-mentioned case held that the provisions of interest and penalty under Rule 96ZP of the Central Excise Rules, 1944 as ultra vires. Relevant Para of the said judgement is reproduced:- "44. Conclusion We have declared in this judgement that the interest and penalty provisions under the Rules 96ZO, ZP and ZQ of the Central Excise Rules, 1994 are invalid for the reasons assigned in the judgment. Accordingly, the appeals filed by the Revenue are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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