Shajaji Alloy Steel Pvt. Ltd. Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:
1. the above application for waiver of pre-deposit of duty of rs. 39,40,000/- arises out of the order of the commissioner of central excise, aurangabad as a result of rejection of the assessees' claim for re-determination of annual production of annual production capacity under section 3a(4) of central excise act, 1944 on the ground that they had availed of the procedure of compounded levy under rule 96zo(3) at their option and hence cannot claim the benefit of determination of actual production capacity under section 3a(4) of the act.2. none appeared for the applicants; hence we have heard the ld. d.r.and perused the records. we find that in the recent judgment in the case of union of india v. supreme steels and general mills (2001 (47) rlt 129 (sc), the apex court has held that assessee having opted for determination of duty liability on the basis of annual production capacity under rule 96zo(3), cannot opt for assessment on the basis of actual production under section 3a(4) during the same financial year.therefore, the applicants do not have a prima-facie case on merits.however, having regard to the plea of financial hardship and nothing that the unit has been closed, we are of the view that the interest of justice will be met on directing pre-deposit of rs. 20 lakhs (twenty lakhs) within a period of eight weeks from the date of receipt of this order. we order accordingly. on such deposit, pre-deposit of balance duty shall stand waived and recovery thereof stayed pending the appeal.failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.

Judgment:
1. The above application for waiver of pre-deposit of duty of Rs. 39,40,000/- arises out of the order of the Commissioner of Central Excise, Aurangabad as a result of rejection of the assessees' claim for re-determination of annual production of annual production capacity under Section 3A(4) of Central Excise Act, 1944 on the ground that they had availed of the procedure of compounded levy under Rule 96ZO(3) at their option and hence cannot claim the benefit of determination of actual production capacity under Section 3A(4) of the Act.

2. None appeared for the applicants; hence we have heard the ld. D.R.and perused the records. We find that in the recent judgment in the case of Union of India v. Supreme Steels and General Mills (2001 (47) RLT 129 (SC), the Apex Court has held that assessee having opted for determination of duty liability on the basis of annual production capacity under Rule 96ZO(3), cannot opt for assessment on the basis of actual production under Section 3A(4) during the same financial year.

Therefore, the applicants do not have a prima-facie case on merits.

However, having regard to the plea of financial hardship and nothing that the unit has been closed, we are of the view that the interest of justice will be met on directing pre-deposit of Rs. 20 lakhs (Twenty lakhs) within a period of eight weeks from the date of receipt of this order. We order accordingly. On such deposit, pre-deposit of balance duty shall stand waived and recovery thereof stayed pending the appeal.

Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.