TMI Blog2001 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... (117) E.L.T. 273 (S.C.) wherein the Supreme Court has held that "the schemes contained in Section 3(A)(4) of the Act and Rule 96ZO(3) or Rule 96ZP(3) of the Excise Rules are two alternative procedures to be adopted at the option of the assessee. Thus the two procedures do not clash with each other. If the assessee opts for procedure under Rule 96ZO(1), he may opt out of the procedure under Rule 96ZO(3) for a subsequent period and seek determination of annual capacity of production. An assessee cannot have a hybrid procedure of taking advantage of the payment of lumpsum on the basis of total furnace capacity and not on the basis of actual capacity of production. Such a procedure cannot be adopted at all, for the two procedures are alternative schemes of "payment of tax", (paragraph 10 of the judgment). It is the contention of M/s. Ranjeev Alloys Ltd. that they had challenged the compounded levy scheme before the Hon'ble Delhi High Court which decided the Writ Petition in their favour and that, in the pending appeal filed by the Union of India before the Apex Court, interim orders dated 21-4-1998 have been passed to take actual production as the basis for determining duty and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on monthly basis. Issue No. 2 Regarding the method of determination of annual capacity of production under Rule 96ZO(3), we note that this issue stands settled by the decision of the Tribunal in the case of Arihant Steels v. Commissioner of Central Excise reported in 2000 (124) E.L.T. 564 and Ganpati Industries v. Commissioner of Central Excise, Kanpur reported in 2000 (122) E.L.T. 406 (Tri.) = [1998 (28) RLT 231] wherein it has been held that the capacity of the induction furnace as shown in the invoice of the manufacturer/supplier has to be taken as the basis for annual capacity of production determination. The Tribunal has noted that, according to Rule, 3 of the Induction Furnace Annual Capacity Determination Rules, 1997, the annual capacity production shall be determined by the Commissioner on the basis of authenticated copy of the manufacturer's invoice. In case of non-availability of invoice, Rule 3 further provides that the Commissioner shall ascertain the capacity of the furnace on the basis of capacity of comparable furnace installed in any other factory in respect of which the manufacturer's invoice indicating the furnace capacity is available and the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O(1) of the Rules w.e.f. the above mentioned date, and for the period prior thereto, the ACP shall be determined under Rule 96ZO(3) on the basis of the furnace capacity shown in the manufacturer's/supplier's invoice. This appeal is allowed by remand to the Commissioner after setting aside the impugned order. 4.M/s. Deepak Castings P. Ltd - E/3325/98-NB The assessee opted out of the compounded levy scheme by letter dated 22-5-1998; hence, they will be governed by the procedure under Rule 96ZO(1) w.e.f. 1-6-1998. The assessees do not dispute the ACP determination in terms of Rule 96ZO(3). Therefore, we uphold the capacity as determined by the Commissioner and hold that it shall be applicable upto 31-5-1998. For the subsequent period, the actual production has to be redetermined according to Section 3(A)(4) of the Act read with 96ZO(1) of the Rules for which purpose, we remand the case to the Commissioner. 5.M/s. Vikky Castings P. Ltd. - E/14/99-NB The assessee opted out of the compounded levy scheme under cover of their letter dated 12-1-1998. Hence, w.e.f. 1-2-1998, their actual production is to be redetermined under provisions of Section 3(A)(4) of the Act read with Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual production is to be redetermined according to Section 3(A)(4) of the Act read with Rule 96ZO(1). For the prior period, when the assessees were covered by the procedure prescribed under Rule 96ZO(3), the ACP is to be redetermined on the basis of the furnace manufacturer's/ supplier's invoice, and not on the basis of verification of physical parameters, as has been done by the Commissioner. We, therefore, set aside the impugned order and remand the case for fresh determination to the jurisdictional Commissioner. 9.Venus Castings P. Ltd - E/792/99-NB This assessee did not opt out of the compounded levy scheme. The ACP determination is also not disputed by them. The only plea raised before us is that the factory stands closed from December 97. However, there is no evidence to bear out this contention in the form of any communication to the jurisdictional Central Excise authorities, etc. Therefore, we see no reason to interfere with the impugned order and accordingly, uphold the same and reject this appeal. 10.M/s. Avadh Alloys P. Ltd. - E/1215/99-NB This assessee did not opt out of the compounded levy scheme. The ACP determination is also not disputed by them. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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