TMI Blog2000 (2) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... asted Blooms. A provisional determination and final determination was made under section 3A(1) of the Act, copies of which are Annexures 1 and 2 to the petition. Against the said determination the petitioner made a representation dated 20-11-1998, copy of which is Annexure 3 to the petition. It also made a written submission vide Annexure 5 to the petition. The petitioner wrote a letter dated 29-11-1999 to the Commissioner, Central Excise, Allahabad praying for a re-determination under section 3A(4) vide Annexure 6 to the petition. However, no action was taken in respect of the same and hence this writ petition has been filed. 4.The Department has filed a counter affidavit. In paragraph 5 of the same it is stated that the petitioner is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or less than 3 metric tonnes, or there is any change in the total capacity, the manufacturer shall pay the amount, calculated pro rata: A perusal of Rule 96Z(O) makes it clear that a provision for a lump sum assessment has been made instead of the normal method of assessment, and it is obvious that this provision was made for the sake of convenience for both the assessee as well as the Department. Sub-Rule (3) of Rule 96Z(O) states that a person who avails the benefit of Rule 96Z(O) shall not avail of the benefit of Section 3A(4). 5.The allegation in paragraph 8 of the counter affidavit that the petitioner applied for the benefit of the Scheme in Rule 96Z(O) has not been specifically denied in paragraph 8 of the rejoinder affidavit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the normal mode under section 3A(4) is not available to the petitioner in the present case where he has opted for the benefit under section Rule 96ZO of the Rules of making payment on a lump sum basis. In such a case, Section 3(4) has no application at all. Moreover since the petitioner himself has agreed for the payment on lump sum basis we are not inclined to exercise our discretion in such a case, under Article 226 of the Constitution. 8.In State of Kerala v. Builders Association, 1997 UPTC 12 the Supreme Court upheld a similar provision for payment of lump sum basis instead of normal mode. The Supreme Court observed that this provision was made to provide a convenient, hassle free and simple method of assessment, and by opting for i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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