JUDGMENT
S.S. Rang, Member (J)
1. Appellants filed this appeal against the order-in-appeal passed by the Commissioner (Appeals) whereby the refund claimed by the appellants was rejected.
2. Appellants were engaged in the manufacture of hot-rolled flat rolled products of iron and steel and were working under the Compounded Levy Scheme under Section 3A of the Central Excise Act. Appellants exercised their option and had opted to pay under Rule 96-ZP(3) of the Rules. Appellants filed the refund claim on the ground that their factory remained closed for certain period, therefore, they are entitled for refund of duty during that period.
Heard both sides.
3. The contention of the revenue is that the appellants had not filed any abatement claim, therefore, the refund claim as such is not maintainable.
4. Revenue also relied upon the decision of the Hon’ble Supreme Court in the case of CCE. v. Venus Castings (P) Ltd., 2000 (69) ECC 1 (SC) : 2000 (117) ELT 273 to submit that once a manufacturer has opted to pay duty as per Rule 96-ZP(3) of Central Excise Rules, they cannot opt under Rule 96-ZO(1) of the Rules during the financial year. The contention of the appellants is that their factory remained closed, therefore, they are entitled for the refund of duty amount when there is no actual production during the period in dispute.
5. It is admitted fact that the appellants had not filed any abatement claim. The refund is a consequential relief in pursuance to claim allowed by the authorities. Hence refund claim is not maintainable.
6. Appellants are operating under Rule 96-ZP(3) during the relevant period which does not provide any abatement. The Hon’ble Supreme Court in the case of Venus Castings Pvt. Ltd. (supra) held that a manufacturer, who has opted under Rule 96-ZP(3), cannot go out of this Rule during the financial year. The Hon’ble Supreme Court held as under:
“The schemes contained in Section 3A(4) of the Act and Rule 96ZO(3) or Rule 96ZP(3) of the Excise Rules are two alternative procedures to be adopted at the option of the assessee. Thus, the two procedures do not clash with each other. If the assessee opts for procedure under Rule 96ZO(1) he may opt out of the procedure under Rule 96ZO(3) for a subsequent period and seek the determination of annual capacity of production. An assessee cannot have a hybrid procedure of combining the procedure under Rule 96ZO(1) to which Section 3A (4) of the Act is attracted. The claim by the respondents is a hybrid procedure of taking advantage of the payment of lumpsum on the basis of total furnace capacity and not on the basis of actual capacity of production. Such a procedure cannot be adopted at all, for the two procedures are alternative schemes of payment of tax.”
In view of above discussion, I find no infirmity in the impugned order. The appeal is rejected.