9911796707
TMI Blog2002 (2) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... actual production in terms of the provisions of Section 3A(4) of the Central Excise Act, 1944. The Commissioner vide his impugned order has confirmed the demand of duty against the appellant on the ground that they have not discharged duty liability in terms of ACP fixed by the Commissioner. On the other hand the appellants' contention is that inasmuch as their annual production was less than the ACP fixed, their duty liability should be re-determined in terms of the provisions of Section 3A(4). 2. We have heard Shri B.N. Chattopadhyay, ld. Consultant for the appellants and Shri A.K. Mondal, ld. JDR for the Revenue. 3. We find that the issue has already been considered by us in the case of S.G. Multicast Pvt. Ltd. v. CCE, Jamshedpur vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or payment of duty under Rule 96ZO(1), the provisions of Section 3A(4) cannot be excluded. In fact, the Supreme Court in the case of Venus Castings has observed in para 8 of their judgment that if the Annual Capacity determined by the Commissioner is disputed by the assessee, the Commissioner is required to re-determine the same, as provided in Section 3A(4). To the similar effect is another decision of the Hon'ble Supreme Court in the case of Union of India v. Supreme Steels and General Mills reported in 2001 (133) E.L.T. 513 (S.C.) wherein it was observed that Excise Duty may be charged on the basis of actual production. 7. Now, we find that alternative mode of payment of duty on the non-alloy steel ingots is as per the provisions of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, which shall be deemed to be the Annual Production of such goods by the factory in question. As such, it is seen that for finding out whether the actual production is less than the Annual Capacity of Production, it is first necessary to fix the Annual Capacity of Production in terms of the sub-section (2) of Section 3A. As such, it cannot be said that once the Annual Capacity of Production is fixed, the appellants cannot claim entitlement to pay duty on the basis of the actual production. Sub-section (4) and Sub-section (5) clearly envisage a position where the actual production is less than the Annual Capacity of Production so fixed under the provisions of sub-section (2). 4. In view of the foregoing, we set aside the impugned order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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