2004 (3) TMI 93

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....pondent Union of India. 3.In Civil Rule No. 2366 of 1998, the petitioner Company challenged the order dated 24-10-1997 (Annexure-IX) passed by the Assistant Commissioner (Central Excise), Tinsukia whereby excise duty has been levied payable at the rate of Rs. 4,16,666/- per month. The petitioner Company prayed for direction for re-determination of the excise duty with alternative prayer for direction to the authority for accepting Rs. 3,12,500/- per month and not Rs. 4,16,666/-. In other writ petitions, similar orders passed by the Respondent authority have been challenged with prayers for identical relief as in Civil Rule no. 2366 of 1998. The allegations made are of arbitrary determination of excise duty in violation of the provisions of....

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....ty payable thereon after giving an opportunity to the assessee to produce evidence in support of his claim. The exercise in this behalf will have to be in conformity with the provisions of sub-rule (3) of Rule 3 of the Rules of 1977 which prescribe a formulae for the purpose of calculation of the excise duty. Any action taken in violation of the aforesaid provision would obviously render the assessment as non est in the eye of law. 5.By the Notification No. 27/97, dated 25th July, 1997, the Central Government in exercise of powers conferred under Section 37 of the Act of 1944 inserted certain provisions of which Rule (2) provide for abatement under sub-section (3) of Section 3A of the Act of 1944 in the case where a manufacturer does not p....

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....y them. The determination of the Assistant Commissioner of Excise, Tinsukia has been made as per declaration of the petitioner-assessee and in compliance with the provisions of sub-rule (3) of Rule 96ZO of the Rules. 8.Mr. B. Sharma, learned C.G.S.C. argued that the petitioner Company is not entitled to abatement of central excise duty on account of restriction of power supply by ASEB in view of the option exercised under sub-rule (3) of Rule 96ZO of the Central Excise Rules, 1944. Mr. Sharma further submitted that there is no denial to the averments made by the respondent authority that the petitioner Company has exercised option under sub-rule (3) of Rule 96ZO. In this context, it would be relevant to refer to the provisions in Sub-rule ....

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....il the provision of lump-sum payment of duty as indicated in sub-rule (3), such manufacturer/assessee is not entitled to the benefit under sub-section (4) of Section 3A of the Act of 1944. However, in my considered opinion, the petitioners' case can be considered for abatement if it is covered by the second proviso quoted above. The provisions for abatement will apply in a factory if the capacity of the furnaces installed in the factory undergo a change or other circumstances relatable to the situation mentioned in the second proviso exist even if the Company has exercised option for lumpsum payment under Rule 96ZO. 10.The petitioner Companies in other writ petitions also stand on the same footing inasmuch as that they have claimed abateme....