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2017 (5) TMI 693 - AT - Central ExciseProduction capacity based duty - benefit of Rule 96ZP(3) - applicability of proviso to sub Section (3) or sub-section (4) of Section 3A - Held that: - Hon'ble High Court in the case of MALVIYA STEEL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2002 (2) TMI 252 - CEGAT, NEW DELHI], while dealing with the identical issue has held that in case of manufacturer opts for Rule 96ZP(3) benefit under the proviso to sub-section (3) or sub-section (4) of Section 3A of the Central Excise Act, 1944 cannot be availed - an appellant availing the benefit of Rule 96ZP(3) cannot avail benefit of proviso to sub Section (3) or sub-section (4) of Section 3A - demand upheld. Penalty u/r 96ZP(3)(ii) - Held that: - reliance was placed in the case of M/s. Shree Bhagwati Steel Rolling Mills Versus Commissioner of Central Excise & Another [2015 (11) TMI 1172 - SUPREME COURT], where it was held that imposition of a mandatory penalty equal to the amount of duty not being by statute would itself make rules 96ZO, 96 ZP and 96 ZQ without authority of law - penalty set aside. Appeal allowed - decided partly in favor of appellant.
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