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2016 (3) TMI 483 - CESTAT NEW DELHI

2016 (3) TMI 483 - CESTAT NEW DELHI - 2016 (344) E.L.T. 353 (Tri. - Del.) - Commissioner determining duty liability for the period 1999-2000 under Rule 97ZP(1) with liability for period 1997-98 and 1998-99 was determined under Rule 96ZP(3) - Held that:- The appellant had given the notice about closure to the factory but in that notice dated 01.06.1998 intimating about closure of the mill from 30.05.1998 there was no mention about opting out of the provision of Rule 96ZP(3). Hon’ble Supreme Court .....

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ere 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 / enacted vide notification NO. G.S.R .....

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tion (1) had been in force at all material times and notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or other authority. - Thus allow the Revenue's appeal in as much as the impugned order is modified to the extent that the duty liability for the period 1999-2000 is ordered to be fixed under the said Rule 96ZP(3). - Appeal No. E/2813/2009-EX(SM) - Final Order No. 50990/2016-EX(SM) - Dated:- 10-3-2016 - Shri R.K. Singh, Member (Technical) For the Appe .....

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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 orde .....

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the year 1999-2000 by 31st of March 2000. 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. (vi) The assessee may claim abatement of duty for the year 1999-2000 on account of closure of the mill, if any, in accordance with law. 2. The facts of the case briefly stated are as under: i) The respondent was engaged in the manufacture of Hot Rolled Products of Non-Alloy Steel falling under Chapter 72 of the First Sche .....

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rolling Mills Annual Capacity Determination Rules, 1997 (hereinafter referred to as the Capacity Determination Rules). This scheme was effective from 01.09.1997. 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 2 .....

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pondent, vide its letter dated 31.03.1998, intimated about completion of modification of the mill. viii) The respondent vide their letter dated 01.06.1998, intimated about the closure of the mill from 30.05.1998. ix) The jurisdictional commissioner issued another order dated 03/07.12.1998 provisionally determining the annual capacity at 3670 MT and fixing the duty liability at ₹ 14,68,000/- for 1998-99 under Rule 96ZP (1) by applying the formula prescribed under the said Capacity Determina .....

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xi) However, he determined the Annual Capacity of production at 3670 MT for 1999-2000 and fixed the duty liability at ₹ 14,68,000/- for said period under Rule 96ZP(1) of the said Rules with option to claim abatement of duty for the said period on account of closure of the Mill, if any, in accordance with law. The revenue has contended that: i) While the duty liability for the year 1997-98 and 1998-99 has been fixed under Rule 96ZP (3) the duty liability for 1999-2000 has been fixed under .....

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er opted out of the scheme under Rule 96ZP(3). iii) Although the duty liability for the period 1999-2000 under Rule 96ZP(3) would come to ₹ 5,50,500/- which is less than ₹ 14,68,000/- determined by the Commissioner, the actual realization would be less than ₹ 5,50,500/- in view of the fact that the Rule 96ZP(1) allowed abatement while Rule 96ZP(3) does not allow abatement. 3. Revenue thus prayed to set aside the impugned order to the extent it extended the facility of Rule 96ZP .....

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ent had opted for the scheme under Rule 96ZP(3) and therefore, it had to formally opt out of that scheme to be eligible for the provisions of Rule 96ZP(1). I find that the appellant had given the notice about closure to the factory but in that notice dated 01.06.1998 intimating about closure of the mill from 30.05.1998 there was no mention about opting out of the provision of Rule 96ZP(3). Hon ble Supreme Court in the case of Venus Castings (P) Ltd. (Supra) and Supreme Steels and General Mills ( .....

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