TMI Blog2004 (4) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... 96ZO(3) of Central Excise Rules, 1944 (the Rules for short). The Commissioner Central Excise vide order dated 22-9-1998, determined the annual capacity of production of the unit as 9600 MT in terms of Notification No. 24/97-C.E. (N.T.), dated 25-7-1997 read with Section 3A of the Act. Accordingly, the appellants were required to pay duty of Rs. 5 lakhs per month, through account current as per Rule 96ZO(3) of the Rules. In the meantime, the appellants vide their letter dated 15-1-1998 made submissions to the Commissioner, that they have obtained an order worth Rs. One crore for supply of steel casting to Rail Coach Factory, Kapurthala, and that they would ordinarily be producing Steel Casting and may also produce M.S. Steel Ingots and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-1-1998 to 31-3-1998, the party produced 674.850 MT ingots and 372.220 MT castings i.e. the notified goods were produced in predominance and the unit could not be considered to have worked under Section 3 of the Act. Thus, it has been held that party had worked under Section 3A under compounded levy scheme from 1-9-1997 to 31-3-1998. In view of the above facts, the Commissioner rejected the appellant's claim and ordered the appellants to pay duty in terms of order dated 22-9-1998 for the period from 1-9-1997 to 31-3-1998 under the provision of Section 3A of the Act, and from the period from 1-4-1998 to 31-3-2000 under Section of 3 of the Central Excise Act, 1944 as per the rate specified for the period. 2. Heard both sides. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They placed reliance on the Supreme Court judgments in the case of Oudh Sugar Mills Ltd. v. UOI reported in 1978 (2) E.L.T. (J 172) (S.C.) and Gian Mahtani v. State of Maharashtra reported at 1999 (110) E.L.T. 400 (S.C.) in support of the above submissions. 3. It has been urged that, the duty paid amount under Section 3A, may be scaled down, by giving abatement for the capacity utilized for the manufacture of castings. Modvat be allowed on castings manufactured during the period from 16-1-1998 to 31-3-1998. 4. We note that the facts as enumerated above are not in dispute. The show cause notice extracts the figures of production as under :- Sl. No. Period PRODUCTION C.I. Casting in MTs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, but the same were applicable for the period from 1-9-1997 to 31-3-1998. 6. So far as the subject of opting out of the scheme is concerned, Hon'ble Supreme Court has already decided that, within the same financial year, the manufacture of notified goods do not have an option to opt out of the scheme. It is obvious in this case that, the appellants opted for the scheme vide their letter dated 12-8-1997 and vide their letter dated 16-1-1998 they declared that they wanted to opt out. 7. The statistical data of the production extracted by the Commissioner, from the appellant's own record revealed that, since the appellants were predominantly manufacturing the goods notified under Section 3A of the Act, the duty liability thereon, has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3) in terms of regular procedure, outside the provisions of Section 3A. The appellants are required to discharge the excise duty of Rs. 7,61,696/- demanded in the show cause notice, on this part of the production after availing the facility of the modvat in accordance with the law. However, we note that in the order passed by the Commissioner, mere is no finding regarding payment of this duty by the appellants and the impugned order only confirms the payment of duty in terms of capacity fixed under the provisions of Section 3A. Accordingly, we hold that since there is no order confirming this duty, in the absence of any cross appeal from the department against this deficiency, the appellants are not required to make the said payment and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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