TMI Blog2006 (3) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise. Nagpur vide Ordering original dtd. 31-7-1998 had fixed the annual production of capacity of the appellants unit at 1138 MT Per annum for the financial year 1998-99 and determined the duty liability at Rs. 14,225/- per month. The appellant did not pay the duty so determined during the month of June, 1999, August 1999 to December, 1999 and January, 2000 to March, 2000. They were therefore issued a Show Cause Notice proposing recovery of duty amounting to Rs. 71,125/- and Rs. 56,900/- along with interest at the rate 18% per annum on the aforesaid amount and penalty under Rule 173Q. 3. On adjudication the Assistant Commissioner, Customs and Excise, Nagpur confirmed the demand as proposed and also imposed equal amount of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity. The Tribunal held that this judgment nowhere refers to the Provision of Section 3A(2). The Tribunal therefore held in that benefit of abatement from payment of duty for the period of closing of mill is available under Section 3A(2). Learned Advocate therefore submitted that as per the provision of Section 3A(2) abatement for the period when the unit was closed is permissible. Certain other Tribunal decisions reported as 2002 (148) E.L.T. 1097, 2001 (130) E.L.T. 689, 2004 (177) E.L.T. 624 (T) were cited in all of which it was held that when the unit was closed and necessary intimation was given the abatement should be granted. 6. The learned S.D.R. submitted that as per the provision of Rule 96ZP(3) an assessee who chooses to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, it was submitted that this is in respect of those factories where the annual capacity is determined in mid year and not at the start of the financial year or where unit is closed permanently by surrender of certificate (licence). Reliance in this case was also placed on the decision of the Tribunal in the case of Balaji Steel Profiles v. Commissioner of Central Excise. Visakhapatanam - 2001 (166) E.L.T. 175 (Tri.-Bang.) where it was held that the assessee who opt for payment of duty under Rule 96ZP(3) are required to discharge duty liability even during closure of unit and till surrender of registration certificate. Since, in this case the licence was not surrendered the duty will have to be paid even for closure period. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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