TMI Blog2007 (9) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondents Handum Iron Steel Enterprises Ltd. (hereinafter) referred to as "HISEL" exercised their option to avail the compounded levy scheme under Rule 96ZP(3) of the Central 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 pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they stopped production w.e.f. 18-7-1998 due to shortage of raw material. The factory was started only on 11-2-1999. This was intimated to the department on 10-2-1999. The Andhra Pradesh State Electricity Board disconnected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tribunal cannot take a contrary view and allow appellants to opt out of Rule 96ZO(3) and opt for payment of duty on the basis of their actual production under Section 3A(4) of the Central Excise Act 1944 in the same financial year. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner. However considering the fact that this case is coming before this tribunal for the second time, we are not inclined to pass a further remand order. In the course of the hearing before this bench on 7-9-2007 at Hyderabad, the learned advocate urged that 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 Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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