TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1777
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.... September, 1997 to March, 1998 was allegedly Rs. 42,00,000/- which had to be paid on or before March 31, 1998 but the assessee had paid only Rs. 14,54,996/- and thus paid less by Rs. 27,45,204/-. The appellant was asked to show cause as to why the said duty of Rs. 27,45,204/- together with interest @ 18% be not realized from the appellant. The appellant filed a reply dated June 21, 1998 to the said notice dated May 28, 1998 drawing the attention of the jurisdictional Assistant Commissioner of Central Excise to the fact that Central Excise duty was being paid by the appellant @Rs. 750/- per MT under Rule 96ZO(1) of the said Rules 'under protest'. It was stated that the liability of paying duty under Section 3A of the Act was sub-judice before Hon'ble Supreme Court and the Hon'ble Supreme Court had directed to file application on the basis of actual production by assessees which had to be considered by the Department and until then no coercive action was to be taken by the Department. A copy of the said letter dated 21.06.1998 was also filed. No further proceeding was continued thereafter by the Department on this show cause notice. 2. The appellant, thereafter, by a letter dated M....
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....r by the appellant in respect of re-rolled products, it was required to pay duty @ Rs. 300/- per MT multiplied by the annual capacity determined, according to which the amount of duty came to Rs. 50,13,229.20 but the appellant had paid only Rs. 12,21,317/-. The appellant was therefore, called upon the show cause to the Commissioner of Central Excise, Jamshedpur as to why the alleged outstanding amount of Rs. 37,91,912/- together with interest @ 18% until the date of actual payment, should not be demanded from the appellant and why penalty should not be imposed upon the appellant. 5. In the meanwhile, there was change in the jurisdictional Commissioner and the appellant's all three cases were transferred to the Commissioner (Adjudication), Central Excise & Service Tax, Ranchi. Thereafter, a common personal hearing was granted to the appellant relating to all the three show cause notices on January 13, 2006 by the Commissioner (Adjn) Central & Service Tax, Ranchi. Vide the common impugned order, the Commissioner confirmed the demands alongwith interest and also imposed penalties. Being aggrieved whereby the instant appeal has been preferred. 6. The Ld Senior Counsel, representing t....
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.... specifically stated that it was paying duty on the basis of Annual Capacity of Production determined by the Assistant Commissioner 'under protest'. It is thus evident that the only option exercised by the appellant in the instant case all along was that the determination of duty liability should be made on the basis of actual production made. There is no evidence to the contrary and none has been disclosed in either the show cause notices or in the impugned order. 6.6 In fact it is acknowledged in the impugned order, in the 'DISCUSSION & FINDINGS' part thereof, that the option exercised was as aforesaid of actual production basis by the appellant, relying upon interim orders passed by the Hon'ble Supreme Court in the case of Venus Castings (P) Ltd. and by the Hon'ble Patna High Court in the case of the appellant.. 6.7 It is submitted that letters of the appellant tantamounted to exercising of option by the appellant. In the premises, the Commissioner should have appreciated and erred in not doing so that in terms of the decisions of the Hon'ble Supreme Court in the case of Commissioner of C.Ex & Custom Vs. Venus Castings (P) Ltd. and Union of India Vs. Supreme Steel & General Mi....
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....nd perused the appeal papers. The written submissions along with annexed documents submitted by the appellant was taken into consideration. 10. We have gone through the relevant letters from the Revenue and the appellant with regard to fixation of the Annual capacity. They are reproduced below : 11. From the above documents, we find that in terms of Section 3A of the CEA 1944, initially on 23.09.1997, the annual capacity of production of the Induction Furnace, @ 9600 MT was fixed on provisional basis. Subsequently, the Commissioner, vide Order dated 25.03.1998, finally determined the annual capacity of production of the Induction Furnace, @ 9600 MT. The appellant, vide their letter dated 21.06.1998, submitted that they were paying the Excise Duty 'Under Protest' towards the Annual Production Capacity determined provisionally in September 1997. They also drew the attention towards the issue pending before the Hon'ble Supreme Court and the direction of the Apex Court to the Revenue to allow the manufacturer to pay the Excise Duty based on the actual production. The appellant's letter clarifies that they did not accept the Provisional / Final capacity determination by the Revenue. ....
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....er it is available subject to the condition that once having opted for it, benefit if any under sub-s (4) of Section 3A of the Central Excise Act, 1944 shall not be available. We find that the controversy sought to be raised stands finally settled by a decision of this Court reported in JT 2000 (4) SC 77 - Commissioner of Central Excise & Customs v. M/s. Venus Castings (P) Ltd. It has been clearly held that two procedures namely one as provided under sub-s (4) of Section 3A of the Central Excise Act and the other as provided under sub-rule 3 of Rule 96ZO of Central Excise Rules are alternative procedures and the assessee has to opt for one. Once having done so he cannot claim the benefit of the other.' 15. The Apex Court has held that the assessee has two options under Section 3A. They can opt for Annual Capacity based duty payment, which is required to be determined by the Revenue, based on various manufacturing paramaters. Secondly, they can pay based on the actual production / clearance basis. The only bar imposed is to the effect that the assessee cannot switch over from one procedure to another within the same financial year. 16. Coming to the factual matrix of the present c....