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2010 (2) TMI 924 - HC - Central ExciseWrit application - pre-deposit - two procedures - one under Section 3A(4) of the Central Excise Act, 1944 read with Section 96ZP(1) of the Central Excise Rules for assessment as per actual production and the other provided under Rule 96ZP(3) of the Central Excise Rules for assessment on the basis of the production capacity, as determined, are alternate procedures and the assessee has the choice to opt for either - According to the petitioner, the compounded levy scheme was effective for the period from September, 1997 to March, 2000 and thereafter, again ad valorem rate of duty under Section 3 of the Central Excise Act was introduced - petitioner opted for duty under Rule 96ZP(3) of the Central Excise Rules for 1997-1998 - It is alleged that petitioner opted to pay duty as per actual production under Section 3A(4) of the Central Excise Act, 1944 read with Rule 96ZP(1) of the Central Excise Rules - contended that the option was not for the period in dispute, but for the next financial year – Held that:- Tribunal has disposed of the stay application cursorily, by recording that the appellant had not been able to make out a case for total dispensation of duty and penalty - It is also difficult to appreciate the basis on which the learned Tribunal directed payment of Rs. 4,00,000/-. The order impugned does not discuss the basis for directing the appellant to pay Rs. 4,00,000/-, orders cannot be sustained and the same are set aside. The learned Tribunal shall decide the issue of dispensation of pre-deposit afresh in accordance with law and in the light of the observations made above, writ application is disposed of
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