9911796707
TMI Blog2007 (9) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Rule 1944 for discharge of duty liability in respect of MS CTD bars of non alloy steel. In terms of the above rule, the respondents were required to pay duty at the rate of Rs. 4,21,825/- per month as determined by the Commissioner in his order dated 29-9-1997. The respondents failed to pay the duty amount of Rs. 21,09,125/- for the period from September 1998 - January 1999. Hence, Revenue proceeded against the respondents for demand of the duty and further imposition of penalty. The Adjudicating Authority confirmed the duty demand and imposed equal penalty. Interest was also demanded. The respondents approached the CEGAT Bangalore. The CEGAT remanded the matter to the original authority with the following observations : "On a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the electricity supply to the respondents on 21-9-1998 for non-payment of electricity bill. The respondents represented to the department for re-fixation of the annual capacity of production on the ground that the factory was in operation only during a part of the year. They wanted the benefit under proviso to sub-Section 2 of Section 3A of Central Excise Act. The learned advocate for the respondent relied-on the decision of the tribunal in the case of Malviya Steel Ltd. v. Commissioner of Central Excise, Jaipur [2002 (147) E.L.T. 563 (Tri. - Del.) wherein it was held that benefit of abatement from duty is available to the appellants under Section 3A(2) of Central Excise Act, 1944. 6. The Commissioner has stated in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue regarding the non-availability of the benefit under Section 3A(4) of the Central Excise Act 1944 to the manufacturers opting for payment of duty under Rule 96ZO(3) was finally decided by the Apex Court in the case of CCE v. M/s Venus Castings (P) Ltd. reported in [2000 (117) E.L.T. 273 (S.C.)] which was relied upon in the subsequent case of UOI v. Supreme Steels & General Mills. In the Nalanda Electro Steel case relied on by the Commissioner, the facts are different. The appellants in that case were paying duty under Rule 96ZO(1)/96ZP(1-) read with Section 3A(4). The dispute arose because Commissioner was of the view that they have to pay duty under Rule 96ZO(3)/96ZP(3) even though they had not opted for the same. The dispute was sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit under proviso to Section 3A(2) is available for the respondents. For clarity we reproduce Section 3A(2) of the Central Excise Act, 1944. The proviso is in italics: "Section 3A(2) - Where a notification is issued under subsection (1), the Central Government may, by rules. provide for determination of the annual capacity of productions or such factor or factors relevant to the annual capacity of production of the factory in which such goods are produced, by the Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory : Provided that where a factory producing notified goods is in operation only during a part of the year, the production thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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