TMI Blog2005 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 29-9-1997. The annual capacity of the Furnace as determined under the Induction furnace Annual Capacity Determination Rule came to 32,000 M.Ts per annum. The Respondents in his letter dated 21-8-1997, 7-10-1997 requested to avail the option of lump sum payment under Clause (3) of Rule 96ZO of the Central Excise Rules, 1944. Further in all the above letters, they had requested for re-determination of capacity by taking into account the alleged idle/spares capacity of the furnace. The Commissioner rejected the same in his letter dated 13-5-1998. The duty liability to be paid under Rule 96ZO (3) for the period from 1-9-1997 to 31-3-1998 is Rs. 116,6667/- lakhs (Sic). But the total duty paid by the assessee for the above mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity. The assessee was repeatedly requesting for re-determination of ACP with a desire to opt for Rule 96ZO(3). The request for re-determination of ACP was finally rejected by the Commissioner on 13-5-1998. The assessee's have not filed appeal against the order of the Commissioner. Therefore, they continue to work under Rule 96ZO(3). Once they opt for lump sum payment they become ineligible for re-fixation of ACP under Section 3A. (ii) The Commissioner erred in holding that the issue before him is not why the party had not produced goods and paid duty. If the Commissioner was of the opinion the assessees are rightly covered under Rule 96ZO(1) and have correctly paid the duty then they should have re-fixed the annual production af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) It was pointed out to the proper authority that the inclusion of the spare crucible quantum in the production capacity was not as per law in terms of the Belgaum Commissionerate's Trade Notice No. 87/97 dated 7-8-1997. (iii) The option to fall under Rule 96ZO(3) was not exercised in the proper format. Even before the induction furnace ACP Determination Rules, 1997, came into effect on 1-9-1997 respondent-assessee opted out of the scheme vide his letter dated 28-8-1997. (iv) Assuming but not admitting that the respondents wanted to operate under sub-rule (3) of the Rule 96ZO he would have to intimate the Commissioner in the format as provided in sub-rule (4) of the Rule 96ZO. In the absence of such intimation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not given by a speaking order. In any case, the letter dated 13-5-1998 rejecting the respondent's request for re-determining the annual capacity is not an appealable order. In these circumstances, ignoring the repeated pleas of the respondent to re-determine the capacity the Department has issued show cause notices to demand differential duties based on the original determination of the annual capacity. The Adjudicating Authority has brought out all the facts and has held that the respondent had actually withdrawn his option under Rule 96ZO(3). 8. We find that the decision of the Commissioner is correct in the light of the circumstances of the present case. He has also stated that the respondent had not opted for Rule 96ZO(3) as they had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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