2018 (8) TMI 1382 – CESTAT MUMBAI – TMI – Abatement claim – period of closure under Rule 96ZP(2) of erstwhile Central Excise Rules, 1944 – rejection on the ground that since the appellant has exercised option to pay lump sum duty under Rule 96ZP(3) of the said Rules – Held that:- Learned C.A. for the appellant could not produce any order whereby, the operation of the judgment of 3 members Bench in the case of Supreme Steels and General Mills [2001 (10) TMI 90 – SUPREME COURT OF INDIA] has been stayed – In absence of any stay, the ratio laid down thereunder be considered as binding precedent.
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Appeal dismissed – decided against appellant. – Appeal No. E/86209/18 – A/87037/2018 – Dated:- 5-7-2018 – DR. D.M. MISRA, MEMBER (JUDICIAL) Shri Jayesh P Doshi, C.A. for Appellant Shri Sanjay Hasija, Supdt. (AR) for Respondent ORDER Per: Dr. D.M. Misra Heard both sides. 2. This is an appeal filed against Order-in-Original No. NSK/CGST-CS/002/CPM/13/2017-18 dated 29.12.2017 passed by the Comm
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le Supreme Court but recently the issue has been referred by two members Bench of the Hon'ble Supreme Court for constitution of the Larger Bench in the case of Bhuwalka Steel Industries Ltd. Vs. Union of India – 2017 (348) ELT 393 (SC). Therefore, the matter should not be decided and be kept in abeyance. However, he submits that no stay has been granted by the Hon'ble Supreme Court against the earlier judgment of the three members Bench. 5. Per contra learned AR vehemently argued that this Tribunal has decided the issue. He further submits that all these issues have been considered by the jurisdictional High Court in the case of Rajuri Steels Pvt. Ltd. – 2008 (225) ELT 189 (Bom), wherein it has been held that once the assessee opted to discharge duty under Rule 96ZP(3) of the erstwhile Central Excise Rules, 1944, he cannot in turn ask for abatement under Rule 96ZP(2) of the Central Excise Rules, 1944. Further, he submits that in absence of stay from the Supreme Court, the prece
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oduction capacity determined, are required to pay the duty at the rate of ₹ 300/- per tonne, as against ₹ 400/- per tonne in the cases covered by sub-rule (1) of Rule 96. Therefore, if the manufacturer desires to enjoy the benefit of the scheme under Rule 96 ZP(3) of payment of annual duty at a lower rate at ₹ 300/- per tonne and by payment in twelve monthly instalments payable before 10th of every calendar month, the condition is that he shall not have benefit of proviso to sub-section (3) as also sub section (4) of Section 3, which we have already reproduced hereinabove. If the proviso to sub-section (3) is not available, the manufacturer-enjoying benefit of payment by the procedure prescribed under Rule 96-ZP(3) shall have no remission, merely because production had come to halt for certain period, although exceeding seven days. 6. So far as reliance placed by Advocate Shri Chillarge on proviso to sub-section (2) is concerned, on comparing the text of sub-section (
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