TaxTMI 
TaxTMI 
2018 (8) TMI 352
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....ter No. 72 of the Central Excise Tariff Act, 1985 and have been discharging duty liability under Section 3A of Central Excise Act, 1944. Section 3A (1) of Central Excise Act empowers the Central Government to notify the goods on which duty will be levied and collected on the basis of the annual capacity of the factory. Section 3A(2) empowers the Central Government to frame rules to provide for the manner for determination of annual capacity. Section 3A(3) provides for abatement of duty when a factory producing the notified goods did not produce them for any continuous period of 15 days or more. Whenever the assessee claims that the actual production of the notified goods in his factory is lower than the production determined as per the capa....
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....ed @ Rs. 400/- per metric tonne on the capacity of the production of the factory, while sub Rule (3) provides for a concessional rate of duty on an annual basis at Rs. 300/- per metric tonne. The assessees opting to pay under Rule 96 ZP (3), will have to discharge their duty liability monthly by the 10th of each month, on 1/12th of the total annual capacity as determined. This benefit of concessional rate of duty under sub rule (3) is also subject to the condition that the manufacturer shall not avail the benefit, if any, under provisions of Section 3 or Sub Section 4 of Section 3A. Thus, the abatement of duty for the period when the factory was closed as well as the option of getting the duty liability re-determined based on actual product....
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....r of CESTAT. Thereafter, Ld. Commissioner (Appeals) vide Order-in-Appeal No. 29/2008 (H-I)(D)CE, dated 18.12.2008 upheld the Order-in-Original on merits and rejected the department's appeal. The current appeal is against this impugned Order-in-Appeal. Revenue contended that the Order-in-Appeal is not sustainable on the following grounds: (a) Sub Rule (3) of Rule 96ZP starts with the wording "notwithstanding anything contained elsewhere in these rules ........." Therefore the provisions of sub-rule (2) of the said rule 96ZP which allows abatement under section 3A of 1944 Rules, shall not be applicable to sub-rule (3) of the rule 96ZP which entitles the manufacturer to abatement if the factory is closed for some period. (b) Assessee fail....
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....Section 3A(4) of Central Excise Act, 1944 in case it is less than the duty payable under Rule 96ZO(3) of Central Excise Rules, 1944. This ratio of this decision squarely applies to the present case inasmuch as the issue involved in the present case is abatement of duty. In view of the above, Revenue pleads that their appeal may be allowed and the Order-in-Appeal may be set aside. 7. Ld. Departmental Representative reiterated the above grounds of appeal and forcefully argued that there is no abatement under the proviso to Sub Section (2) of Section 3A. It only empowers the Government to frame rules to provide manner for determination of annual capacity. The only abatement available under section 3A is under sub section 3 or sub section 4. ....
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....re it is necessary for us to take into consideration this contention of the department. A plain reading of sub-section (2) of Section 3A shows that it empowers the Central Government to make rules. It also provides that if the factory is closed for some time, the rules may provide for abatement of duty. Abatement of duty is not the subject discussed in Sub Section (2) of Section 3A but only the Government's power to make rules. Abatement has been provided for in the Sub Section (3) of Section 3A which is available to any assessee unless he operates on a concessional scheme in which he is not entitled to the benefit of this abatement. In the present case, the assessee had availed the concessional rate of duty under Rule 96ZP (3) and therefor....