TMI Blog2010 (12) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, SDR, for the Respondent. ORDER This is an appeal against the Order of the Commissioner vide No. V-72-73(8)21/98/39410-11 dated 10-12-2004. 2. Heard both sides. 3. Briefly stated the facts of the case are that the appellants are the manufacturers of M. S. Ingot, Bar Rods, Tor, M. S. Angles 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion dated 4th February, 1999. There is no specific provision to the effect that the declaration has to be filed for every Financial Year separately opting to come under Compounded Levy. Similarly, no specific provisions and format for opting out of the scheme has been prescribed. Therefore, he submits that their 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 171) E.L.T. 296 (S.C.) and submits that when a declaration is prescribed, the same cannot be treated as an empty formality. He also relied on the decision of the High Court of Punjab and Haryana in the case of Commissioner of Central Excise, Ludhiana v. M/s. B.T. Steels Ltd. reported in 2009-TIOL-716-HC-P 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of Eagle Flask Industries Ltd. (cited supra) will not apply to the facts of the present case. It is not the case of the Department that there was formal declaration prescribed under Rule 96ZO for opting out of the scheme and that the appellants have failed to follow the same. On 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l stand quashed without prejudice to any fresh order being passed in accordance with law. It is made clear that if penalty has attained finality as in CWP No. 18099 of 2009 upto this Court, this order will not affect the finality of such order. The appeals filed by the revenue against the orders of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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