TMI Blog2003 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ngots are not notified items and are not covered by the provisions of Section 3A of the Central Excise Act, 1944 or under Rule 96ZO of the Central Excise Rules, 1944. However, the non-alloy steel ingots were notified under Rule 96ZO. 2. The appellants Annual Capacity of Production was fixed under the provisions of Rule 96ZO(3) by the Commissioner vide his Order dated 26-3-98. However, the said Order related to the year, 1997-98 and it was mentioned in the said letter that for the next financial year, 1998-99, a fresh application will have to be filed. In the meanwhile, the appellants manufacturing pattern changed and after a lot of correspondence exchanged between the Revenue and the appellants, the Commissioner vide his Order dated 25- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight thousand six hundred and thirty-eight) along with the imposition of personal penalty of identical amount and a sum of Rs. 10.00 lakh (Rupees ten lakh) for the period from February, 1998 to October, 1999. The appellants are aggrieved with the said Order. 5. Shri S.K. Bagaria, learned Advocate for the appellants submits that they had acted in accordance with the Order dated 25-3-99 passed by the Commissioner requiring them to pay duty on ad valorem basis, on all clearances effective from February, 1998. The said Order was not appealed against by the Revenue and as such, attained finality. As such, it was not open to the Commissioner to re-open the proceedings by way of Demand Proceedings against them. He, further, submits that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of personal penalty under that provisions of Rule 96ZO(3) read with Rule 173Q have also been assailed. 5. Shri A.K. Mondal, learned SDR for the Revenue reiterates the reasoning of the adjudicating authority. 6. We have considered the submissions of both sides. Undisputedly, the Commissioner vide his Order dated 25-3-99 directed the appellants to pay duty under the provisions of Section 3 of the Central Excise Act, 1944 on ad valorem basis with effect from February, 1998. The appellants have discharged their duty-burden accordingly, after availing the Modvat credit of duty paid on the inputs. It is also seen that a dispute as regards availability of Modvat credit arose and was adjudicated by a separate Order of the Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod under Section 3 was much more than the duty now being demanded from them under the provisions of Section 3A. The Commissioner while demanding the duty has not neutralised the same with the earlier duty paid by the appellants and has confirmed the duty under the provisions of Section 3A. Accordingly, we held that no duty was required to be paid by the appellants on their final product during the relevant period. 7. By virtue of the said Order dated 25-3-99, the Commissioner permitted the appellants to work under the provisions of Section 3 with effect from February, 1998. However, we note that during the financial year, 1997-98 which ended on 31-3-98, the appellants were already working under the provisions of Rule 96ZO(3). In terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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