TMI Blog2016 (3) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... ot opt twice during one financial year and the opting out of Rule 96ZP(3) would be applicable from the beginning of the next financial year. As find Revenue's contention that the Commissioner was not right in extending the provisions of Rule 96ZP(1) for the period 1999-2000 when there was no such request from the respondent to opt out of scheme under Rule 96ZP(3) sustainable. Notice of closure cannot be read to be an option to opt out of Rule 96ZP(3). Incidentally in the wake of the Finance (No.2) Act, 2009 (by virtue of section 111 thereof) (The Hon’ble High Court of Uttarakhand in the case of Kukreti Steels Ltd. Vs. CCE Meerut-1 - 2015 (9) TMI 205 - UTTARAKHAND HIGH COURT ) held that there is no dispute that Rule 96ZO was introduced / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ACP at 3670 MT and fix the duty liability at ₹ 45,875/- for 98-99 under Rule 96ZP (3) of the Central Excise Rules, 1944. (iii) I determine the annual capacity at 3670 MT for 1999-2000 and fix the duty liability at ₹ 1468000 for 1999-2000 under Rule 96ZP(1) of the Central Excise Rules 1944. (iv) The assessee were accordingly required to pay the duty determined for the year 1997-98 and 1998-99 per month by tenth day of each month during the period from September 1997 to March 1999. In case of non-payment or short payment of duty, the same is ordered to be recovered alongwith interest at the rate of 18% per annum. In case, any duty is payable on account of finalization over and above the one fixed in provisional orders, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) The Respondent, vide their letter dated 10.09.1997, exercised its option to work under Rule 96ZP(3) of the said rules and declared value of various parameters and other information of its mill, as required under the scheme. iv) The jurisdictional Commissioner of Central Excise issued Provisional capacity Determination order dated 29.09.1997/01.10.1997 and provisionally determined the annual capacity at 3811.53 MT fixing the duty liability at ₹ 95,288/- PM from September 1997 under Rule 96ZP(3) by applying the formula prescribed under the Capacity Determination Rules. v) The respondent vide its letter dated 22.12.1997 intimated about their intention to change in the Annual Capacity of Production. vi) The jurisdictional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1997-98 and 1998-99 has been fixed under Rule 96ZP (3) the duty liability for 1999-2000 has been fixed under Rule 96ZP(1) by treating the letter of closure dated 01.06.1998 as the letter for opting out of Rule 96ZP(3). ii) Hon ble Supreme Court in the case of CCE Vs. Venus Castings (P) Ltd. 2000 (117) ELT 273 (SC) and in the case of UOI Vs. Supreme Steels and General Mills 2001 (133) ELT 513 (SC) has held that manufacturer cannot opt twice during the same financial year and when he opts out of the scheme under the Rule 96ZP(3) it will be from the beginning of the next financial year. The respondent never opted out of the scheme under Rule 96ZP(3). iii) Although the duty liability for the period 1999-2000 under Rule 96ZP(3) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 96ZP(3) would be applicable from the beginning of the next financial year. I find Revenue s contention that the Commissioner was not right in extending the provisions of Rule 96ZP(1) for the period 1999-2000 when there was no such request from the respondent to opt out of scheme under Rule 96ZP(3) sustainable. Notice of closure cannot be read to be an option to opt out of Rule 96ZP(3). Incidentally in the wake of the Finance (No.2) Act, 2009 (by virtue of section 111 thereof) (The Hon ble High Court of Uttarakhand in the case of Kukreti Steels Ltd. Vs. CCE Meerut-1 2015 (322) ELT 465 (Uttarakhand) held that there is no dispute that Rule 96ZO was introduced / enacted vide notification NO. G.S.R. 448(E), dated 1st August 1997. Perusal of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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