Statutory right prevails over conflicting excise rule, allowing capacity redetermination on actual production basis.

Rule 96ZO(3) cannot curtail the right conferred by Section 3A(4) of the Central Excise Act, 1944; where the subordinate rule conflicts with the parent statute, the statutory provision prevails. The Tribunal followed its earlier view that an assessee may seek redetermination of annual capacity of production on actual production basis under Section 3A(4), even after opting to discharge duty under Rule 96ZO(3). On that basis, the claim was required to be examined under the section, and the matter was remanded for fresh consideration after hearing the parties.

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Issues: Whether the appellant was entitled to re-determination of annual capacity of production on actual production basis under Section 3A(4) of the Central Excise Act, 1944 despite having opted to discharge duty liability under Rule 96ZO(3) of the Central Excise Rules.

Analysis: The Tribunal followed its earlier decisions holding that Rule 96ZO(3) was in conflict with Section 3A(4), and that a rule cannot curtail the relief or right conferred by the section. It applied the settled position that the statutory provision prevails over the subordinate rule and that the assessee could seek determination of annual capacity of production on actual production basis under Section 3A(4).

Conclusion: The appellant was entitled to have its claim examined under Section 3A(4), and the matter was remanded to the adjudicating authority for fresh consideration.

Final Conclusion: The impugned orders were set aside and the appeals were allowed by way of remand after grant of opportunity of hearing.

Ratio Decidendi: Where a subordinate rule conflicts with the parent statute, the statutory right conferred by the section prevails and cannot be taken away by the rule.

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