JUDGMENT AND ORDER : Ajit Singh, J. This is an appeal under Section 35-G of the Central Excise Act,1944 against the order dated 9.12.2010 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (in short “Tribunal”) in Excise Appeal No.EDM-159/2005 insofar as it relates to the Financial Year - 1998-99. 2. The facts in short are these. The appellant is a company. It is in the business of manufacturing of iron and steel products falling under Chapter 72 of Central Excise Tariff Act, 1985. The goods manufactured by the appellant are leviable to excise duty. Section 3 of the Central Excise and Salts Act, 1944 provides for levy of the excise duty on goods manufactured. Section 3A was inserted by the Finance Act, 1997. It provided for payment of excise duty on annual capacity production. And sub-section 2 of Section 3A provided for determination of annual capacity production by framing rules. Accordingly, the Induction Furnace Annual Capacity Determination Rules, 1997 were framed. 3. On 1.8.1997, by a notification, Rules 96 ZO and 96 ZP were inserted in the Central Excise Rules, 1944 providing for payment of excise duty @750 per metric ton on capacity production. Sub-rule 3 of Rules 96 ZO and ZP gave an option to the manufacturer like appellant to pay excise duty on lump sum basis. The appellant, therefore, vide its letter dated 10.9.1997, opted to pay excise duty on lump sum basis. 4. The validity of Section 3A was, however, challenged by the Steel Rolling Mills Association of India, of which, the appellant is also a member, before the Supreme Court in WP(C) No.133/1998 and the Supreme Court, vide order dated 21.4.1998, observed that it would be open to the manufacturers to submit application for payment of excise duty on the basis of actual production and the same shall be considered by the competent authority in accordance with the rules. 5. It appears that on account of peak hours load restriction of electricity due to paucity of power supply between 4/5 p.m. to 10 p.m. for industries, there was loss of production in the appellant’s industry. The appellant, therefore, wanted to pay excise duty on actual production basis and hence, filed WP(C) No.3398/1998. 5. It appears that on account of peak hours load restriction of electricity due to paucity of power supply between 4/5 p.m. to 10 p.m. for industries, there was loss of production in the appellant’s industry. The appellant, therefore, wanted to pay excise duty on actual production basis and hence, filed WP(C) No.3398/1998. Also, pursuant to the abovementioned order dated 21.4.1998 of the Supreme Court, the appellant, vide application dated 1.10.1998, opted out from the scheme of paying excise duty on lump sum basis and sought to pay excise duty on actual production basis. The appellant also reiterated its request to pay excise duty on actual production basis by making another application dated 4.2.1999. But the Commissioner, Excise vide order dated 12.4.1999 rejected the application on the ground that appellant was not covered by the Supreme Court’s order dated 21.4.1998. 6. Moreover, since the Central Excise authorities were against the payment of excise duty on actual production basis and were threatening to take penal measures, the appellant filed WP(C) No.2020/1999, in which, a Single Judge Bench of this Court, vide order dated 3.5.1999, directed the authorities not to take any coercive and penal measures. This court, then later, vide order dated 4.3.2004, disposed of a bunch of writ petitions, including WP(C) No.3398/1998 filed by the appellant, directing the Commissioner, Excise to verify if option was given by the appellant to pay excise duty on actual production basis and if it was found that such option was made, the benefit should be given. The Commissioner, Excise, in turn, vide order dated 10.12.2004 held that application dated 1.10.1998 of the appellant was not for opting out to pay excise duty on lump sum basis, but it was only an intimation. The Commissioner also for the first time assessed and imposed penalty of Rs.1,58,36,420/- equal to the duty amount demanded vide letter dated 24.12.2001. In the result, vide order dated 22.2.2005, goods were ordered to be attached by the authorities and thereafter vide notice dated 25.2.2005, a demand was made to pay the duty determined by the Commissioner, Excise, failing which, the goods seized shall be auctioned. 7. Aggrieved, the appellant filed WP(C) No.1561/2005, in which, a Single Judge Bench, by an interim order dated 2.3.2006, stayed both order dated 22.2.2005 as well as notice dated 25.2.2005 subject to payment of Rs.70 lacs. 7. Aggrieved, the appellant filed WP(C) No.1561/2005, in which, a Single Judge Bench, by an interim order dated 2.3.2006, stayed both order dated 22.2.2005 as well as notice dated 25.2.2005 subject to payment of Rs.70 lacs. The learned Single Judge also gave liberty to the appellant to file an appeal before the Tribunal. The appellant, therefore, in compliance of order dated 2.3.2006 filed an appeal before the Tribunal challenging the validity of order dated 10.12.2004 passed by the Commissioner, Excise. 8. The Tribunal, vide order dated 9.12.2010, partially allowed the appellant’s appeal holding that option exercised by it vide application dated 1.10.1998 will be available for the year 1999-2000 and not for the year 1998-99. While doing so, the Tribunal relied upon the decision of the Supreme Court in Union of India vs. Supreme Steels and General Mills (2001) 9 SCC 645 , wherein it is held that manufacturer cannot opt twice in the same financial year because the assessment has to be made for the whole year and not in piece meal manner. It is in this background, the appellant has filed the present appeal. 9. On 10.5.2012, the appeal was admitted on the following question of law:- “The question involved is whether the appellant had given option for the compounded levy scheme for the Assessment Year - 1998-99?” Later, the appellant filed M.C No.478/2013 for framing two more questions of law which were allowed vide order dated 8.1.2014. The additional questions of law allowed to be framed are as under:- “A. What is the effect of omission of Rules 96 ZO and 96 ZP with effect from 01.03.2001 along with omission of Section 3A of the Act by the Finance Act, 2001 w.e.f. 11.05.2001 on the pending proceedings out of which this appeal arises? B. In the absence of any saving clause provided in the Finance Act, 2001 while omitting Section 3A of the Act and Rules 96 ZO and 96 ZP, whether it will have any effect on the pending proceedings and if so, in what manner ?” 10. The above referred questions of law were framed in the light of decisions of the Supreme Court in Rayala Corporation Private Limited vs. Director of Enforcement, (1969) 2 SCC 412 and Kolhapur Cane Sugar Works Limited vs. Union of India, (2000) 2 SCC 536 . The above referred questions of law were framed in the light of decisions of the Supreme Court in Rayala Corporation Private Limited vs. Director of Enforcement, (1969) 2 SCC 412 and Kolhapur Cane Sugar Works Limited vs. Union of India, (2000) 2 SCC 536 . But since later both these decisions have been held to be per incuriam by a subsequent decision of the Supreme Court in Fibre Board Pvt. Limited vs. CIT, Bangalore (2015) 10 SCC 333 , the learned senior counsel for the appellant has not pressed the appeal on these questions of law. Instead, the learned senior counsel has filed I.A.(Civil) No.198/2016 for substituting the abovementioned questions of law with the following questions of law:- “(i) Whether declaration dated 10.09.1997 filed by the Appellant during the earlier Financial Year 1997-1998 could be taken as a declaration for the subsequent Financial Year 1998-1999, even though the Appellant opted out on 01.10.1998 i.e. during the Financial Year 1998-1999? (ii) Is there any time limit in a given Financial Year to opt out of the scheme?” 11. The learned counsel for the respondents, in the light of subsequent event, fairly agreed with the substitution of questions of law as prayed for by the appellant. We, therefore, allow the application and proceed to decide the matter on the substituted questions of law. 12. The learned Senior Counsel for the appellant has argued that letter of option dated 10.9.1997 to pay central excise duty on lump sum basis was for the financial year 1997-98 and the same could not have been taken as a declaration for the subsequent financial year 1998-99, particularly, after the appellant opted out by making application dated 1.10.1998 during the financial year 1998-99. According to the learned senior counsel, the appellant gave only one option to pay excise duty on lump sum basis for the financial year 1997-98 and did not give any option for the financial year 1998-99 before 1.10.1998, on which date, the appellant informed the authorities that he would pay excise duty on actual production and therefore, the Tribunal committed an illegality in holding that appellant cannot exercise option twice in the light of decision of the Supreme Court in Union of India vs. Supreme Steels and General Mills (supra). The learned counsel for the respondents on the other hand vehemently defended the impugned order passed by the Tribunal. 13. The learned counsel for the respondents on the other hand vehemently defended the impugned order passed by the Tribunal. 13. Rule 96 ZO and Rule 96 ZP of the Central Excise Rules provide the procedure to be followed by the manufacturer to pay duty. It also enumerates the manner of calculating and making payment of total amount of duty for the period from 1st day of September, 1997 to 31st day of March, 1998 and thereafter, total amount of duty liability for financial year subsequent to 1997-98. The appellant vide letter dated 10.9.1997 opted to pay excise duty under these Rules on lump sum basis. And it is not in dispute that the total amount of duty liability for the period from 1st day of September, 1997 to 31st day of March, 1998 was duly paid. The appellant then vide application dated 1.10.1998 opted out from the scheme of paying excise duty on lump sum basis and sought to pay excise duty on actual production basis. This the appellant did because of various factors, one of them being due to paucity of power supply between 4 pm to 10 pm for industries, there was loss of production in the industry. The Supreme Court also, as mentioned above, vide order dated 21.4.1998 passed in WP(C) No.133/98, had observed that it would be open to the manufacturer to submit application for payment of excise duty on the basis of actual production and the same shall be considered by the competent authority. 14. It is to be noted that the actual production of any period can be determined only after that period is over. This position has been admitted in the additional affidavit-in-opposition filed by the Assistant Commissioner, Central Excise Department in WP(C) No.2020/99, wherein it is clearly stated that actual production for 1998-99 i.e. any period, can only be determined after that period is over i.e. on or before 1.4.1999. The Commissioner, Central Excise has also admitted this position in his letter dated 12.4.1999. And in respect to financial year 1998-99, the appellant vide letter dated 1.10.1998 opted only once to pay excise duty on actual production. Also from 1.4.98 to 30.9.98 the appellant did not pay duty under the scheme i.e. on lump sum basis. There is nothing on record to suggest that for that year, the appellant chose to pay excise duty on lump sum basis. Also from 1.4.98 to 30.9.98 the appellant did not pay duty under the scheme i.e. on lump sum basis. There is nothing on record to suggest that for that year, the appellant chose to pay excise duty on lump sum basis. There is admittedly no provision which prescribes any particular time for opting out from the scheme of paying excise duty on lump sum basis and to offer for making payment on actual production. Therefore, in our considered view, the Tribunal committed an illegality in holding that option exercised by the appellant vide application dated 1.10.1998 will be available for the year 1999-2000 and not for the year 1998-99 by applying the ratio of decision in Union of India vs. Supreme Steels and General Mills (supra). The decision in fact does not apply in the present case at all. We accordingly direct the Excise Department to calculate the excise duty for the year 1998-99 after determining the actual production of that year and the appellant shall pay the calculated amount of duty without any further delay. 15. As regards interest and penalty, the Supreme Court in Shree Bhagwati Steel Rolling Mills –vs- Commissioner of Central Excise (2016) 3 SCC 643 , has clearly held that levying of interest under Rule 96 ZO and Rule 96 ZP of the Rules is not permissible because Section 3A of the Central Excise and Salts Act, 1944, which provides for a separate scheme for availing facilities under a compound levy scheme does not itself provide for levying of interest. In the same case, the Supreme Court has also struck down Rule 96 ZO and Rule 96 ZP in so far as they impose a mandatory penalty equivalent to the amount of duty on the ground that these provisions are violative of Articles 14 and 19 (1)(g) of the Constitution and are ultra vires the Central Excise Act. We accordingly set aside the interest and penalty imposed on the appellant by the respondents. 16. The appeal is allowed. The impugned order of the Tribunal dated 9.12.2010 is set aside to the extent of our directions and findings in paragraphs 14 and 15 of this judgment.