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TMI Blog2017 (8) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... levy scheme under Section 3A of the Act read with Rule 96ZP(3)of Central Excise Rules, 1944. 2. The brief facts of the case are that Section 3A of the Act, inserted with effect from 14/05/1997 provides for levy of tax under the compounded levy scheme. Accordingly, Notification No.31/97-CE dated 1st August, 1997 was issued under the powers conferred under Section 3A(1) of the Act with regard to the goods manufactured by the appellant under Tariff Heading No.7213.90, 7214.90, 7216.10 & 7216.90 of the schedule to Central Excise Tariff Act, among other goods, manufactured or produced in a Hot Re-rolling Steel Mill. The Notification also provided that the notified goods will fall under compounded levy scheme with effect from 1st August, 1997 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: Sr. No. Notification Amendment 1 Notification No.43/97-CE dated 30 August, 1997) (A) - Pg. 39 2 Notification No.45/97-CE dated 30 August, 1997) These rules will be called the Hot Re-rolling Steel Mills Annual Capacity Determination (Amendment) Rules, 1997. They shall come into force on the first day of September, 1997. In Sub-rule 3 of Rule 3 the following sub rule shall be substituted. The parameters for determination of the annual capacity of production was modified and also change was made in number of utilized hours with respect to the furnace. 4 Notification No.56/97-CE dated 30 August, 1997) Earlier Notification No.48/97-CE was amended providing any goods manufactured or produced prior to first September 97 and cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opt twice during one financial year first choosing to pay in accordance with Sub-rule 3 of Rule 96ZO and thereafter to switch over to actual production basis under Section 3A(4) of the Act, in case it is less than the duty payable under Sub-rule 3 of Rule 96ZO. This Tribunal passed the following operative order: - "We have heard the rival submissions. We have also produced the case law and the evidence on record. The issue has been finally decided by the Apex Court in the case of Supreme Steel cited above. It will be necessary to examine the present case in the light of the decision of the Apex Court. We, therefore, remand the case to the Commissioner concerned to examine the case of the appellant in the light of the finding of the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during September, 1997 to January, 2000. It is evident from this chart that the party was not paying duty on the basis of Rs. 300/- PMT (which should have been the duty payable under Rule 96ZP(1), but the payment was in lump sum. In any case the party had not filed its option as per rules for their non-payment of duty on the basis of actual production/clearance also, it is clear that the party had not opted for payment of duty under Rule 96ZP(1). 8. The ld. counsel appearing for the appellant, Mr. Nishant Mishra have taken us through the scheme as originally pronounced for compounded levy on 1st August, 1997 and substituted and or amended scheme with effect from 1st September, 1997 as already noticed hereinabove. He, further, urges that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new scheme with effect from 01/09/1997. He, further, states that the appellant-assessee had not made specific requests that the new compounded levy scheme is not applicable in the case vide letters dated 21/11/1997, 09/05/1998 etc. Further the appellant had made specific plea in the writ petition before Hon'ble Delhi High Court filed in the month of September/October, 1997 wherein they have expressly averred that they shall pay duty on the basis of actual production and also avail Cenvat credit. In view of the facts and circumstances, there is practically no acceptance given by the appellant-assessee for paying duty under the compounded levy scheme and as such the order of the ld. Commissioner is erroneous, demanding duty under the compound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further, find that the option instead of being specifically given separately and or categorically, has been made part of the proforma for declaration for determination of Annual capacity of production. Further there is no date given in the said declaration and neither it is specifically signed as required under Rule 96ZP(4) of Central Excise Rules, 1944. We, further, find that the appellant have never acted upon in terms of the said declaration, which is found otherwise redundant and stale in terms of the amended provisions as from the very beginning, soon after the implementation of the compounded levy scheme with effect from 01/09/1997, the appellant have opted to pay categorically on the basis of actual production under Section 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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