ORDER
G.R. Sharma, Member (T)
1. This is an appeal against the findings of the Commissioner holding that “The representation dated 12-3-1998 made by the assessee for determination of duty liable under Rule 96ZP(1) for the past period, instead of Rule 96ZP(3) is not sustainable and he therefore ordered for immediate recovery of the dues from them as per rules.” None appeared for the appellants.
2. Shri D.K. Nayyar, ld. JDR submits that Rule 96ZO(3) is carved out as an exception. It stipulates that once an assessee has opted for working under Rule 96ZP(3) a contractual obligation comes into existence between Government and the assessee. He submits that after taking into consideration all the factors, the Government gave the concession of about 25% in payment of duty under Rule 96ZP(3). He submits that once the assessee has opted for working under the provision of Rule 96ZP(3), he cannot change the option retrosepectively for determination of ACP under Rule 96ZP(1). He submits that the entire case is to be viewed in this light. He submits that since the assessee had exercised his option to work under the provisions of Rule 96ZP(3), he could not go for determination of ACP under Rule 96ZP(1), therefore the lower authorities have rightly denied the assessee the option retrospectively.
3. Heard the DR’s submissions. We note that with the introduction of compounded levy, Section 3A was introduced in the Central Excise Act w.e.f. 1-9-1997. With the introduction of new scheme, sub-section 4 of Section 3A was also introduced. Sub-section 4 of Section 3A provides that “Where 1/2 assessee claims that the actual production of notified goods in his factory is lower than the production determined under Sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in Sub-section (3).” We note that this sub-section of Section 3A is specific which provided the assessee an option to request for the determination of ACP in terms of specified rule and redetermination of duty liability. Thus there is an option available with the assessee. We note that similar issue came up before the Tribunal in the case of Minakshi Castings 1999 (32) RLT 82. In that case similar facts came up for decision before the Tribunal though it was a case under Rule 96ZO(3). However, the provisions being similar for furnace (under Rule 96ZO) and rerolling mills under Rule 96ZP, we note that the ratio of this judgment of the Tribunal in the case of redetermination of the ACP in terms of Rule 96ZO(3) is applicable for application to the facts of the present case. Following the ratio, we hold that the assessee had an option to apply for redetermination of ACP under Sub-section (4) of Section 3A. Having regard to this finding, we remand the case back to the Commissioner concerned for examining the contention of the assessee for redetermining the ACP under Rule 96ZP(1) after providing the assessee an opportunity of being heard in person and pass appropriate orders in accordance with law. Appeal is, therefore, allowed by way of remand.