V.K. Agrawal, Member (T)

1. The Revenue has filed this appeal against the Order-in-Appeal Nos. 61-62/2003, dated 14-2-2003, by which the Commissioner (Appeals), has allowed the revision of A.S.P. to the respondents, M/s. Jai Bharat Industries.

2. Shri U. Raja Ram, learned D.R., submitted that the respondents manufacture aluminium circles; that they filed A.S.P. with the Range Superintendent for the financial year 1998-99 in respect of rolling machine of the size of 32" length in terms of Notification No. 109/94, dated 13-5-94; that they started paying Central Excise duty @ Rs. 10,000/- per month per rolling machine w.e.f. 1-4-98; that, subsequently, w.e.f. 1-7-98, the respondents consequent upon reduction of rolling machine size from 32" to 29.9", filed another A.S.P. and claimed compounded duty @ Rs. 7,500/- per month; that the Assistant Commissioner under Order-in-Original Nos. 103-104/99, dated 14-9-99, demanded the duty on the ground that the A.S.P. once fixed by the competent authority under Rule 96ZA of the Central Excise Rules, cannot be changed till the expiry of the period; that, however, on appeal filed by the respondents, the Commissioner (Appeals), in the impugned order, has allowed the revision of the A.S.P. relying upon the decision of the Tribunal in Jupiter Industries v. C.C.E., 2001 (137) E.L.T. 1018. Learned D.R., further, submitted that the compounded levy is a special procedure for payment of Central Excise duty under which a manufacturer discharges duty liability by making payment of amount fixed per machine under the relevant excise rules; that the rates per machine are fixed having regard to the average production per machine in terms of Rule 96ZB; that law has laid emphasis on fixation of A.S.P. for a minimum period of 12 months; that the power to grant permission for A.S.P. less than 12 months, is with the Commissioner and the respondents were required to first get the permission of the Commissioner; that they had unilaterally started to pay lower duty without getting permission from the Commissioner and, accordingly, the demand of duty short-paid by them is correct. He also mentioned that the decision in the case of Jupiter Industries has not been accepted by the Department and a Reference Application has been filed in the High Court of Rajasthan.

3. Countering the arguments, Shri Alok Arora, learned Advocate, submitted that after fixing of A.S.P., the respondents have informed the Range Superintendent under their letter dated 7-6-98 that they have reduced the rolling machine size from 32" to 29.9" and requested him to verify the same so that they may submit revised A.S.P.; that they have submitted revised A.S.P. on 18-6-98, which was forwarded by the Superintendent to the Assistant Commissioner; that the Assistant Commissioner can accept A.S.P. for shorter period as per the delegation of powers; that the Commissioner (Appeals), has rightly relied upon the decision in the case of Jupiter Industries (supra) wherein the Tribunal has held that "these Rules, in no way stipulate that any sum at the compounded rate is payable towards duty for a machine which is not in existence with the manufacturer." He, therefore, contended that the respondents have paid appropriate duty as the Department has not denied the fact that they have used the roller of the size of 29.9".

4. We have considered the submissions of both the sides. Rule 96ZA provides special procedure for payment of duty on stainless steel pattis/pattas and aluminium circles. The manufacturer discharges the duty on excisable goods manufactured by him by making payment of amount fixed per machine under Rule 96ZB. The rates per machine are fixed in terms of Notification issued under Rule 96ZB(1). We observe that Sub-rule (2) of Rule 96ZA provides that the application made by the manufacturer for special procedure can cover a period less than 12 months. Learned Advocate, for the respondents, has shown that this power to grant special procedure under Sub-rule (2) of Rule 96ZA has been delegated to the Assistant Commissioner. It has not been disputed by the Revenue that the respondents have submitted an application to the Assistant Commissioner through the Range Superintendent for necessary changes as they have reduced the size of the roller. In view of these facts and circumstances, we do not find any infirmity in the impugned order passed by the Commissioner (Appeals). Accordingly, the appeal, filed by the Revenue, is rejected.