TMI Blog2014 (12) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... at of the declaration prescribed under Rule 96 ZO(4) also makes it clear that the declaration is not for any particular financial year nor is it required to be filed for every financial year. - Even the appellants’ declarations did not indicate that they were valid only for one financial year. Therefore unless the appellants specifically opted out of the scheme, the declarations they filed opting for the compounded levy scheme obviously continued to be valid. The Supreme Court in the case of CCE Vs. Venus Castings Pvt. Ltd. - [2000 (4) TMI 37 - SUPREME COURT OF INDIA] has held that the assessee if they have availed of the procedure under Rule 96 ZO(3) at their option, cannot claim the benefit of determination of production capacity under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Singh : This order is being issued in pursuance of the order of the Hon ble High Court of Allahabad in respect of the appellants appeal No. 171/2006 [2014-TIOL-715-HC-All-CX]. 2. Vide its Final Order No. 61/2006-Ex. dated 7.10.2005, CESTAT had upheld the impugned order-in-original in terms of which the duty demand on the appellants was confirmed assessing their liability under Sub-Rule (3) of Rule 96 ZO of the (then) Central Excise Rules, 1944. Para-3 of the CESTAT order is re-produced below : 3. The contention of the Revenue is that the appellant filed necessary declaration in the year 1997 and also on 1.4.98, in terms of Sub-Rule (3) of Rule 96 ZO of the Central Excise Rules and their duty liability is determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witch over to actual production basis under Section 3A (4) of the Central Excise Act. The same view is reiterated in the case of Union of India Vs. Supreme Steels General Mills (supra). In the present case the appellant during the same financial year asked for re-determination of the annual capacity under Section 3A(4) of the Central Excise Act which is not permissible. Further, we find that appellant in the beginning of any financial year had not opted to pay duty under Section 3A (4) of the Central Excise Act. The letters relied upon by the appellant is only asking for re-determination of actual production basis during the same financial year for which appellant opted to pay duty under Rule 96 ZO (3) of the Central Excise Rules. In thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 96 ZO had not been given by them. 5. The appellants contended that the compounded levy scheme under Rule 96 ZO ibid operated financial year wise and therefore when no option was given by them to opt for the scheme for the financial year 1999-2000, the assessment under Rule 96 ZO was not legal and proper. They also contended that by their various letters they had been protesting that there is much difference between their capacity determination and actual production and that the duty paid by them under Rule 96 ZO should be treated to have been paid under protest. They referred to their letters dated 27.2.1999 and 4.5.1999 wherein they requested for re-determination of the duty liability on actual production basis during the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 96 ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3A(4) of the Central Excise Act, 1944 which is specifically excluded. As observed by CESTAT in its order dated 7.10.2005, the Supreme Court in the case of Venus Castings (supra) also held that a manufacturer cannot opt twice during one financial year first choosing to pay in accordance to Sub-Rule (3) of Rule 96 ZO of Central Excise Rules and, thereafter, to switch over to actual production basis under Section 3A (4) of the Central Excise Act. This itself means that the assessee can opt out of the scheme at the end of the financial year. It is matter of record that the assessee never opted out of the compounded levy scheme af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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