TMI Blog2007 (7) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... of determination of annual production capacity. We are afraid, proviso relied upon by learned Counsel for the appellant does not come to the rescue of the appe1lant-assessee. On the contrary, the same supports the department during the process of determination of annual production capacity. The benefit of proviso to sub section (3) and sub-section (4) of Section 3A of the Act, is not available to the appellant herein, if it has enjoyed benefit of payment of excise duty under procedure prescribed by Rule 96-ZP(3).Therefore, no substantial question of law arises for our consideration. - 667 of 2007 - - - Dated:- 18-7-2007 - N.V. Dabholkar and M.G. Gaikwad, JJ. [Order (Oral)]. - Assessee-appellant has approached us, feeling aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 19-1-2004. Aggrieved by the same, assessee had approached CESTAT. From the order of CESTAT, it appears that none was present on behalf of the appellant-assessee in spite of service of notice, when the appeal was called out for hearing. 3. For the purpose of pressing admission of appeal, Advocate Shri Chillarge for appellant, placed reliance upon sub-section (2) of Section 3A of the Act, as was in force during relevant period. The said provision reads thus; "3A. Power of Central Government to charge Excise duty on the basis of capacity of production in respect of notified goods. (1) Notwithstanding anything contained in Section 3, where the Central Government, having regard to the nature of the process of manufacture or production of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial question of law arises in this appeal, it is necessary to refer to Rule 96-ZP(3) of the Rules, which prescribes procedure to be followed by the manufacturers of Hot Re-rolled Products and sub rule (3) more particularly prescribes procedure pertaining to those manufacturers, who opt for the scheme of payment of duty on the basis of annual production capacity as determined under Section 3A(1) (2). Rule 96ZP(3) reads thus; "Rule 96ZP. Procedure to be followed by the manufacturer of hot rerolled products. - (1) xxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxx (3). Notwithstanding anything contained elsewhere in these rules, a manufacturer may, in the beginning of each month from 1st day of September, 1997 to the 31st day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows; "Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in respect of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3)." It is evident that proviso to sub-section (3) enables the assessee, upon fulfilling certain conditions as may be prescribed, to pay proportionately less duty in case the factory and production is closed for a continuous period exceeding seven days. Sub-Section 4 makes a provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) is pertaining the procedure for determination of annual production capacity whereas sub-section (3) is regarding rate and manner of recovery, wherein proviso enables some relaxation. Proviso relied upon by Advocate Shri Chillarge is for the purpose of determination of annual production capacity. If the authorities, after declaring particular product as "notified goods", proceeds to fix the annual production capacity of the factory, it has to do so by giving proportionate increase, if during the year under consideration for the purpose of fixation of annual production capacity, the factory was closed for certain period, manufacturer will be able to evade the duty, by taking the production of six months to be the annual production cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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