2001 (8) TMI 837 - AT - Central Excise

Tribunal Upholds Duty Payment Rule, Rejects Production Calculation Switch

The Tribunal upheld the Commissioner's order directing the assessee to pay duty based on their ACP declaration under Rule 96ZO(3), rejecting the argument ... Production capacity based duty Issues:- Appeal against order directing payment of duty based on ACP declaration.- Interpretation of Rule 96ZO(3) for payment of duty.- Applicability of Supreme Court judgment on payment of duty based on actual production.- Claim for benefit under sub-section (4) of Section 3A of CEA'44.Analysis:1. The appeal challenges the order of the ld. Commissioner requiring the assessee to pay duty according to their ACP declaration. The appellants had opted for duty payment under Rule 96ZO(3), which determined their production capacity. They were issued show cause notices for differential duty as they did not pay duty as per the fixed ACP. The appellants argued for duty calculation based on actual production, citing a Tribunal decision supporting their stance.2. The ld. JDR supported the Commissioner's order, referencing the Supreme Court's ruling in the Venus Castings case. The Tribunal concurred with the JDR's position, stating that the Supreme Court decision and the Ganpati Indus. case establish that once a manufacturer opts for duty payment under Rule 96ZO(3), they cannot switch to actual production calculation for the same period. The Tribunal emphasized that while manufacturers can opt out of the scheme later, they must adhere to the chosen method for the specified period.3. The impugned order highlighted that the appellants were not entitled to claim the benefit of paying duty based on actual production under sub-section (4) of Section 3A of CEA'44 due to their prior choice to operate under Rule 96ZO(3). The Commissioner's decision was based on the legal position outlined by the Supreme Court, rendering the appellants' claim invalid. Despite the appellants' arguments and submissions, the Tribunal found no grounds to overturn the order and upheld the Commissioner's decision, consequently dismissing the appeal.