ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Original No. 16/2000 dated 29.12.2000 passed by the Commissioner of Central Excise, Chennai II confirming the demands raised in the show cause notice holding that the demands are required to be confirmed in terms of Rule 96ZO(3) CE Rules, 1944 for the period 1.9.97 to 31.12.1999. The appellant have challenged this confirmation and contend that although they have opted for monthly payment of duty under Rule 96ZO(3) of CE Rules, 1944 by their letter dated 3.9.97 yet the duty is required to be re-determined under Section 3A(4) of the CE Act for the reasons given by them with regard to annual capacity of production. However, the Commissioner has disagreed with their view and held that once determined under Rule 96ZO(3) cannot be re-determined under Section 3A(4) of CE Act.
2. Ld. Counsel Shri S. Murugappan along with Ms. Pramila submits that the party has not contacted them and he does not have any further instruction in the matter as also because the company is now closed.
3. Ld. DR submits that as the issue is no longer res integra and the Apex Court has finally decided the issue in the case of CCE & CC v. Venus Casting (P) Ltd. , wherein it has been clearly laid down that once the assessee has availed of the procedure under Rule 96ZO (3) of CE Rules, 1944 at their option, thereafter cannot claim the benefit of determination production capacity under Section 3A(4) of CE Act which is specifically excluded in the rule.
4. We have carefully considered the issue. We have perused the order and notice that the annual capacity of production was determined in terms of appellant’s own letter in terms of Rule 96ZO(3) of CE Rules. Therefore, Commissioner was justified in rejecting the claim for re-determining the annual capacity of production in terms of Section 3A(4) of CE Act. The issue has been confirmed by the Apex Court Judgment in the cited case. In that view of the matter following the ratio there is no merit in this appeal and hence the appeal is rejected