9911796707
TMI Blog2003 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... nthanam, learned Advocate, submitted that M/s. Dina Metals Ltd., Appellant No. 1 M/s. Dina Mahabir Re-rollers Pvt. Ltd. Appellant No. 2 manufacture M.S. Ingots hot re-rolled products of iron and steel respectively; that they never opted for payment of duty under the provisions of Rule 96ZO(3)/96ZP(3) of the Central Excise Rules respectively; that they have always paid duty on actual production in terms of the provisions of Rule 96ZO(1)/96 ZP(1) read with sub-section (4) of Section 4 of the Central Excise Act; that the Appellate Tribunal, vide Order No. 408-409/KOL/2002 dated 2-4-2002, remanded their cases to the adjudicating authority for fresh decisions in the light of the decision in the case of S.G. Multi Cast Pvt. Ltd. v. Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Steel and General Mills, 2001 (133) E.L.T. 513 (S.C.) has affirmed that it is absolutely optional for the manufacture to opt for payment of excise duty in accordance with sub-rule (3) of Rule 96ZO; that the Apex Court has held that "two procedure namely one as provided under sub-section (4) of section 3A of the Central Excise Act and the other as provided under sub-rule of Rule 96ZO of Central Excise Rules are alternative procedures and the assessee has to opt for one. The learned Advocate mentioned that both the Appellants had never opted for Rule 96ZO(3)/96ZP(3) and they had opted for payment of duty on the basis of actual production only under Section 3A(4) of the Act and accordingly they are liable to discharge the duty liability on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the determination of the actual production would not mean assessment on the basis of RG I Register/RT 12 returns as it would amount to bidding adieu to the special provisions of the Compounded Levy Scheme; that the entire scheme under Section 3A hinges on the determination/redetermination of the duty liability on the basis of Annual Capacity of Production; that the question whether the notified goods are stored or not, cleared or not, etc. have no bearing in Compounded Levy Scheme in the background of special circumstances of Large scale evasion rampant in secondary steel manufacturing sector; that accordingly RG I/RT 12 returns have no relevance. He also mentioned that the Tribunal, while remanding the matter, has not given the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the onus to establish the claim of less production vis-a-vis the Annual Capacity of Production determined lies on the Appellants which they have failed to discharge; that consequently their duty liability is to be determined on the basis of Annual Capacity of Production in terms of the provisions of Rules made in this regards for determination of Annual Capacity. He also relied upon the decision of the Larger Bench of the Tribunal in the case of Mohinder Steels Ltd. v. CCE, Chandigarh, 2002 (145) E.L.T. 290 (T-LB) wherein it has been held that "the importing of elements of one Scheme of Tax administration to a different scheme would be wholly inappropriate as it would disturb the smooth functioning of that unique scheme." 5. We have consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such production at the rate specified in sub-section (3). Sub-section (5) of Section 3A is to the effect that where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, shall be adjusted against the duty so redetermined and if the duty already paid, fall short or is in excess, the duty so re-determined, the assessee shall pay the deficiency or be entitled to a refund as the case may be. A reading of the above two sub-sections of Section 3A shows that the same enables the manufacturer to pay duty on the basis of the actual production, if the same is less than the production determined under sub-section (3), sub-section (2) requires determination of the Annual Capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, as per sub-section, has been given discretion to determine the actual production, after giving an opportunity to the assessee to produce evidence in support of his claim. It has been contended by the learned Advocate for the Appellants that they had submitted RG I register and RT 12 returns in support of their claim that their actual production was lower than the production determined by the Commissioner under sub-section (2) and the same have been rejected by the Commissioner who had not directed them to produce any other record. It is well settled that any discretion vested in any authority has to be exercised judiciously. The Commissioner, in our view no doubt is the only authority to determine the actual production and if he is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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