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2019 (1) TMI 906 - AT - Central ExciseValuation - annual capacity of production - abatement of duty - closure of factory - intimation of closure filed timely - whether the appellants are entitled for abatement of duty as provided sub-section (4) of Section 3A of Central Excise Act, 1944? - Held that:- We do not find that the appellants have opted for the operation under Rule 96ZP. The Revenue did not produce any evidence to contradict the same. We find that there is a provision under Section 3A(4) for redetermination of amount of duty where the assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2). Hon’ble Supreme Court in the case of M/S. BHUWALKA STEEL INDUSTRIES LTD. & ANOTHER VERSUS UNION OF INDIA & OTHERS [2017 (3) TMI 1357 - SUPREME COURT OF INDIA] has laid emphasis on the fact that the conditions of Rule 96ZP are not eternal. If the appellant has to pay duty even when there was no production in the factory, it leads to illogical conclusions. The provisions of Rule 96ZP do not take away the right of the assessee from exercising a facility given under Section 3A. It is found that in case the appellants have not opted for Rule 96ZP, they are governed by Section 3A(4) and the authorities are bound to examine their claim of closure of the factory and to give abatement of the duty - There is nothing shown on record that the appellant’s request was considered by the Revenue and an order has been passed after giving a due opportunity to the appellants. Therefore, there is no merit in the order passed by Commissioner (A) - the contentions of the appellant is correct that they are liable to pay duty for the period of 58 days and accordingly, the balance duty of ₹ 1,23,990/- is confirmed - penalty set aside - appeal allowed - decided in favor of appellant.
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