TMI Blog2012 (5) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... iled against three different Orders-in-Appeal bearing Nos.287/KOL-II/2003 dated 30.12.2003; 010/KOL-II/2004 dated 20.01.2004; and 212/KOL-II/2003 dated 25.11.2003 respectively all passed by Commissioner (Appeal-II), Central Excise, Kolkata. 2. Briefly stated the facts of the case are that the Applicant are engaged in the manufacture of MS Bars and Rods of non-alloy steel falling under chapter sub-heading 7214.90 of the First Schedule to Central Excise Tariff Act, 1985. The said goods attracted levy of excise duty under Section 3A of the Central Excise Act, 1944 w.e.f.01.09.1997. The Appellant had filed a declaration dated 19.08.1997 under Notification No.32/97-CE(NT) dated 01.08.1997 under Rule 96ZP of the erstwhile Central Excise Rules, 1944, wherein they had intimated to the Commissioner of Central Excise, Kolkata-II that they wish to avail of the Scheme described under sub-rule (3) of Rule 96ZP for full and final discharge of their duty liability for the manufacture of hot re-rolling products of non-alloy steel under Section 3A of the Central Excise Act, 1944. They had furnished details of their furnace, as required for determination of capacity under Hot Re-rolling Steel Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. The Tribunal may, if it so chooses, proceed to decide the appeal on merits, notwithstanding the pendency of any request for dispensation of predeposit. 4. Pursuant to the said Order of the Hon ble High Court, since the matter pertains to the interpretation of Notification, the Appeals are listed before the Division Bench and heard at length on 31.01.12. As the Applicant had deposited an amount of Rs.18,928/- accepting their liability from the total demand, the deposit of balance amount of duty and penalty waived and with the consent of both sides and in view of direction of the Hon ble High Court, the Appeals are taken for disposal. 5. The contention of the learned Consultant is that during the period from 01.09.1997 to 31.03.2000, they were under the compounded levy scheme as they are engaged in the manufacture of MS Rods and Bars falling under Chapter sub-heading 7214.90 of CETA. In terms of the provisions of sub-section (2) of Section 3A of the Central Excise Act, 1944, the duty was required to be paid on the said goods on the basis of determined capacity of production by the Commissioner of Central Excise under Hot Re-rolling Steel Mills Annual Capacity of Determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise and Customs vs. Venus Castings Pvt. Ltd. reported in 2000(38)RLT 1(SC). He has submitted that in the said judgement, it has been held that alternative procedures are to be adopted at the option of the assessee and these two procedures do not clash with each other. If the assessee opts for procedure under Rule 96ZP(1), he may opt out of the said procedure and opt in under Rule 96ZP(3) for the subsequent period and seek the determination of the ACP and the assessee cannot have both the hybrid procedure of combining procedure under Rule 96ZP(1) to which Section 3A(4) of the Act is attracted. Following the ratio of the above-cited judgements, the learned Consultant submitted that the assessee may opt for an actual production under the provisions of sub-section (4) of Section 3A of the CEA,1944 and in that case, learned Commissioner shall determine the actual production of the rolling mills. It is the submission of the Appellant that they had availed the option for payment of Central Excise Duty on the basis of actual production under the provisions of sub-section (4) of Section 3A of the CEA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opt out of the scheme by exercising his option in a financial year and he cannot opt for a system i.e.partly under Rule 96ZP(3) and partly under Rule 96ZP(1) in the same financial year. By implication, it cannot be said that an assessee is allowed to opt out of the scheme under Rule 96ZP(3) automatically in the next financial year without exercising option. He has submitted that in the present case, the Appellant had exercised their option through their letter dated 19.08.97 exercising their option to pay duty under Rule 96ZP(3) of the said Rules. The subsequent letter dated 19.08.98 was a fall-out of the interim direction issued by the Hon ble Supreme Court in pursuance of the batch of appeals filed by the Association of Steel Manufacturers before the Hon ble Supreme Court. However, the Appellant continued to pay duty @Rs.300/- per MT instead of Rs.400/- per MT, the rate applicable for discharging duty under Rule 96ZP(3) of the Central Excise Rules. He has further mentioned that the Appellant had discharged the duty @Rs.400/- for the period, 1999-2000 only after filing the Appeal before this Tribunal. He has submitted that the learned Commissioner has consistently determined the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MANIA STEEL WORKS located at 107/1, Jaiya Bibi Road, Ghusury (Howrah) hereby wish to avail of the scheme described in sub-rule(3) of rule 96ZP for full and final discharge of our duty liability for the manufacture of hot re-rolled products of non-alloy steel under section 3A of the Central Excise Act, 1944. Subsequently, through their letter dated 19.08.98, pursuant to the Interim Order of the Hon ble Supreme Court, as referred to in their letter, they mentioned as follows:- According to the said interim order of Supreme Court, we have already made debit entries in our PL A/c. towards adjustment of C.E. Duty on monthly production from Sept. 97 to March 98 (vide Sl. No.2 to 8 dt.30.04.98). However, they continued to discharge duty @Rs.300/- per MT, as was applicable for clearance of goods exercising option under Rule 96ZP(3) of the said Rules and not 96ZP(1) of the said Rules to which applicable rate of duty was Rs.400/- per MT at the material time. Thereafter, they have not specifically communicated to the Department regarding payment of duty, exercising their option under any of the Rules. The Commissioner in his successive Orders for the respective financial years inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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