TMI Blog2016 (2) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of Krishna Processors [2012 (11) TMI 954 - GUJARAT HIGH COURT ]. - Central Excise Appeal No. 1423 of 2007-EX(DB) - - - Dated:- 20-11-2015 - Anil Choudhary, Member (J) And CJ Mathew, Member (T) For the Appellant : Shri Alok Arora, Adv For the Respondent : Shri Ajay Kumar, Joint Commissioner (AR) ORDER Per Anil Choudhary The appellant is in appeal against order-in-original dated 29.1.2007 passed by the ld. Commissioner, Central Excise, Meerut I, refusing the payment of duty under normal scheme and confirming the duty under the Compounded Levy Scheme for the period June 1998 to November, 1998. 2. This is the second round of litigation. 3. The brief facts of the case are that the appellant b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appeal petition, they have not specifically challenged the rejection of their option by the Commissioner, however, it is a matter of fact whether they have opted for payment of duty under rule 96ZP(3) for the financial year 1998 - 99 or not. This fact cannot be determined by us as no letter has been discussed under any of the orders produced before us from where it can be inferred whether the appellants had opted for payment of duty under Rule 96 ZP(3) or under Section 3A(4) of the Central Excise Act for the year 1998 -99. Therefore, this fact has to be determined by the Commissioner only. The ld. Advocate appearing for the appellants has stated before us that they have already paid duty as demanded in the impugned order and they wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have abated with effect from 11/5/2001, when Section 3A was omitted, without saving clause and as such the proceeding in the appellant's case also stood abated and no tax could be demanded by the present impugned order-in-original under CLS. Further the appellant relies on the ruling of the Hon'ble Gujarat High Court in the case of Krishna Processors vs. UOI -2012 (280) ELT 186 wherein the question before High Court was -whether in view of omission of Rule 96ZQ with effect from 1.3.2001 and omission of Section 3A with effect from 11.5.2001, the adjudicating authority thereafter could have initiated action for breach thereof by issuance of show cause notice and could have continued proceedings, initiated, without conclusion thereto. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible for him to turn around and ask for regular assessment. 8. Having considered the rival contentions we find that in the appeals before Supreme Court, the matter was during currency of the compounded levy scheme and deletion of the scheme with effect from 11.5.2001 without saving clause, resulting in abatement was not in consideration by the Hon'ble Court. Thus the issue being different we hold that rulings relied upon by the ld. A.R. are not applicable in the present case. Further we hold that under the facts and circumstances, the appellant had not made/expressed option for paying tax for the financial year 1998-99 under the compounded levy scheme. As such, no tax can be demanded under the provisions of Section 3A read with R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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