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2016 (3) TMI 483 - AT - Central ExciseCommissioner determining duty liability for the period 1999-2000 under Rule 97ZP(1) with liability for period 1997-98 and 1998-99 was determined under Rule 96ZP(3) - Held that:- The appellant had given the notice about closure to the factory but in that notice dated 01.06.1998 intimating about closure of the mill from 30.05.1998 there was no mention about opting out of the provision of Rule 96ZP(3). Hon’ble Supreme Court in the case of Venus Castings (P) Ltd. (2000 (4) TMI 37 - SUPREME COURT OF INDIA ) and Supreme Steels and General Mills (2001 (10) TMI 90 - SUPREME COURT OF INDIA ) has in effect held that the manufacturer cannot opt twice during one financial year and the opting out of Rule 96ZP(3) would be applicable from the beginning of the next financial year. As find Revenue's contention that the Commissioner was not right in extending the provisions of Rule 96ZP(1) for the period 1999-2000 when there was no such request from the respondent to opt out of scheme under Rule 96ZP(3) sustainable. Notice of closure cannot be read to be an option to opt out of Rule 96ZP(3). Incidentally in the wake of the Finance (No.2) Act, 2009 (by virtue of section 111 thereof) (The Hon’ble High Court of Uttarakhand in the case of Kukreti Steels Ltd. Vs. CCE Meerut-1 - 2015 (9) TMI 205 - UTTARAKHAND HIGH COURT ) held that there is no dispute that Rule 96ZO was introduced / enacted vide notification NO. G.S.R. 448(E), dated 1st August 1997. Perusal of sub-section (3) of Section 111 of Finance (No.2) Act, 2009 would reveal that any action taken or anything done on purported to have been taken or done at any time during the period of commencement on or from 1st August 1997 and ending with the day the Finance (no.2) Bill, 2009 receives the assent of the President shall be deemed to be and to have always been for all purposes, as validly and effectively taken or done as if the amendments made by sub-section (1) had been in force at all material times and notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or other authority. Thus allow the Revenue's appeal in as much as the impugned order is modified to the extent that the duty liability for the period 1999-2000 is ordered to be fixed under the said Rule 96ZP(3).
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