MOHINDRA UDYOG LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellants herein are an induction furnace unit for whom excise duty liability of Rs. 10 lakhs per month was fixed for the year 1997 -98 and 1998 -99 under Rule 96ZO(3) of the Central Excise Rules, 1944 read with Section 3A of the Central Excise Act, 1944, based on their option. The assessees paid duty @ Rs. 7,50,000/ - per month instead of Rs. 10,00,000/ -, and requested for re -determination of annual production capacity on actual production basis under Section 3A(4) of the Act, due to reduction in power supply by the MSEB. The request was rejected; the assessees came up in appeal to the Tribunal which, vide its order No. C -II/293/WZB/2000 dated 31.1.2000, remanded the case for decision on the claim of the assessees for coverage under Section 3A(4) of the Central Excise Act on actual production basis. The Commissioner in the impugned order has held that the assessees were not eligible for re -determination on the basis of actual production under Section 3A(4), for the reason that annual production capacity was already determined in terms of Sub -rule (3) of Rule 96ZO. Hence this appeal.

(2.) NONE appears for the appellants in spite of notice; hence we heard learned SDR and perused the records.

(3.) WE find that the apex court in the case of CCE v. Venus Castings (P) Ltd. has held that if an assessee opts for procedure under Rule 96ZO(1), he may opt out of the procedure under Rule 96ZO(3) for the subsequent period and seek determination of annual production capacity but he cannot have a hybrid procedure of combining Rule 96ZO(1) to which Section 3A(4) is attracted.