9911796707
TMI Blog2010 (12) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... es etc. falling under Chapter 72 of CETA, 1985. The said goods were notified under Section 3A of the Central Excise Act, 1944 and they were eligible for paying duty based on Annual Capacity of Production (ACP). The appellants filed an application dated 10th September, 1997 under Rule 96ZO (3). The Steel Rolling Mill Association (SRMA) challenged the levy based on capacity of production and the Hon'ble Supreme Court vide Order dated 21-4-98 permitted the members of SRMA to file applications before the Excise Authorities regarding their claim for assessment based on actual production and directed the authorities to consider the same in accordance with law. The appellants filed a letter addressed to the Assistant Commissioner on October, 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir letters dated October, 1998 and 4th February, 1999, should be treated as opting out of the scheme and the demand and penalty should be set aside. He relies on the decision of the Hon'ble Supreme Court in the case of Union of India v. Supreme Steels and General Mills reported in 2001 (133) E.L.T. 513 (S.C.) and submits that they should be extended the benefit of assessments based on the actual production for the years, 1998-99 and 1999-2000. Alternatively, he also submits that question of imposition of penalty equal to the duty involved does not arise and in support of this, he relies on the decision of the Hon'ble Supreme Court in the case of Union of India v. Krishna Processors reported in 2009 (237) E.L.T. 641. The Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H-CX = 2010 (250) E.L.T. 206 (P & H)] wherein it has been held that the imposition of penalty under Rule 96ZO(3)(ii) of the Rules is mandatory and there is no discretion vested in any authority to reduce the penalty on the ground that there was no intention of evading payment of duty or commission of fraud, mis-representation. 6. We have carefully considered the submissions made from both sides and perused the records. We agree with the ld. SDR that there is no stipulation and that the declaration opting for the scheme has to be filed for every financial year. Therefore, the declaration filed by the appellants on 10th September, 1997 will continue to be valid for the subsequent financial years. However, when in pursuance of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the appellant was a member of the Association which filed the writ petition before the Hon'ble Supreme Court and in pursuance of the permission granted by the Hon'ble Supreme Court filed the said communication. There is no communication from the Department seeking any further details with reference to the said communication. However, the appellants are claiming that they have paid duty as per actual production during the year 1999-2000 and the same has not been specifically dealt with by the Commissioner as the focus of the dispute was different before him. Regarding penalty, the decision of the Hon'ble Punjab and Haryana High Court in the case of M/s. B. T. Steels Ltd. (cited supra) relied upon by the ld. SDR has to be view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal sustaining penalty proportionate to the default will stand dismissed." 7. In view of the above, the imposition of mandatory penalty equal to the duty involved does not survive. The penalty has to be considered after taking into account the facts and circumstances of the case. 8. In view of the above, the appeal is disposed off as follows : (a) The appellants are not entitled to pay duty based on actual production for the year 1998-1999 in view of the intimation having been filed only on 1-10-98. The demand of duty along with interest for the period 1998-1999 is upheld; (b) The appellants are, however, entitled to pay duty on actual production during the financial y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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