TaxTMI 
TaxTMI 
2002 (11) TMI 117
X X X X Extracts X X X X
X X X X Extracts X X X X
....passed thereon and the application made pursuant thereto for payment of duty on the basis of actual production in terms of Section 3A(4) of the Central Excise Act, 1944 on January 4, 1999 and thereafter the Tribunal misdirected itself in holding that the applicant had opted for payment of duty with reference to capacity of production under Rule 96ZO(3) of the Central Excise Rules, 1944 during the entire period from December, 1998 to January, 2000 and its purported findings in this behalf are arbitrary, unreasonable and perverse ? Whether the Tribunal misdirected itself in2. rejecting the applicant's claim for payment of duty with reference to actual production under the provisions of Section 3A(4) in respect of the financial years 1998-9....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernatives is also the subject-matter of dispute in this application. Reliance has been put by the parties on the judgment of the Supreme Court in the case of Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd., reported in 2000 (117) E.L.T. 273 (SC), as also upon the judgment of the Supreme Court in the case of Union of India and Others v. Supreme Steel & General Mills and Others reported in [2001 (133) E.L.T. 513 (S.C.) = 2001 (47) RLT 129 (SC)]. The ratio of the aforesaid two judgments clearly indicates and lays down that for the period already spent, or the period which has, already passed by, the assessee once having exercised the option of paying the duty of Central Excise linked with one of the aforesaid two alternat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed in July, 1998 on the ground of the pendency of similar controversy before the Apex Court. The Hon'ble Apex Court has given a decision to the extent that "it will be open to the manufacturer to submit the application on the basis of actual production and, if any such application is submitted the same shall be duly considered by the competent authority in accordance with the Rules." Sir, we are the manufacturer of Non-alloy Steel Ingots falling under chapter heading 7206.90 and the same is covered under the provisions of Section 3A of Central Excises and Salt Act, 1944, and also within the list of appellant i.e. M/s. Bharat Ingots & Steel-Co. (P) Ltd., (a photocopy of Interim Order is enclosed for ready reference and records). As....
X X X X Extracts X X X X
X X X X Extracts X X X X
....paying the duty in terms of sub-rule (3) of Rule 96ZO. It also therefore, clearly meant that both the Supreme Court as well as Patna High Court were of the view that even while the production activities were going on and the assessee had originally exercised the option under sub-rule (3) of Rule 96ZO, it had the right to withdraw that option and ask the Revenue that now it intended to pay the duty of Central Excise in accordance with sub-section (4) of Section 3A of the Act. Looked from any angle, therefore, we have no hesitation in holding that the aforesaid Communication dated 4-1-1999 was in the nature of an exercise of option by the assessee that the assessee at and from that stage wanted to pay the duty of Central Excise in accordance ....