JUDGMENT : Alok Aradhe, J. 1. On 28.02.2017, this Court framed following substantial question of law, which arises for consideration in this appeal:- “Whether omission of Section 3A of the Central Excise Act, 1944 relating to compounded levy scheme wipes out the liability of the assessee when the Show Cause notice is issued, after such omission, for the period during which the Scheme was in operation.” 2. Facts giving rise to the filing of this appeal, briefly stated are that respondent is engaged in manufacturing of hot re-rolled products of non-alloy steel. The dispute in this appeal pertains to the levy of duty for a period w.e.f. 01.09.1997 to 31.03.2000. The respondent was required to pay the duty under Section 3-A of the Central Excise Act, 1944 (for brevity, “the Act”). The respondent on 07.08.1997 opted for payment under Rule 96ZP of the Central Excise Rules, 1944 (for brevity, “the Rules”). Thereupon by order dated 07.04.1998, Commissioner, Central Excise determined the duty payable by the respondent based on the annual production capacity as per Compounded Levy Scheme issued in April, 1998, at 11861.571MT. The respondent on 24.07.1999, when the aforesaid Compounded Levy Scheme was in operation, applied for re-determination of annual production capacity of the unit on the ground that the actual capacity production under Section 3A(4) of the Act is lower than the one which has been determined by the Commissioner vide order dated 07.04.1998. The respondent thereafter filed OWP No.856/1999 before this Court in which an interim order was passed on 30.08.1999 and the competent authority was directed to re-determine the annual production capacity of the respondent-unit in terms of Section 3A(4) of the Act, if same is applicable. 3. In compliance of the interim order passed by this Court in the aforesaid writ petition, the competent authority by an order dated 03.12.1999 denied the benefit of actual production under Section 3A(4) of the Act to the respondent and determined the liability of the respondent to pay the duty, which was quantified at Rs.60.19 lakhs. Being aggrieved, the respondent filed an appeal before the Central Excise Service Tax Appellate Tribunal, which vide order dated 25.10.2002 remanded the matter to the Commissioner, Central Excise & Customs for de-novo adjudication and to examine the question of option, which was given by the respondent. Being aggrieved, the respondent filed an appeal before the Central Excise Service Tax Appellate Tribunal, which vide order dated 25.10.2002 remanded the matter to the Commissioner, Central Excise & Customs for de-novo adjudication and to examine the question of option, which was given by the respondent. The Commissioner Central Excise by order dated 03.11.2003, rejected the demand made by the respondent, inter alia, holding that the plea of the respondent that the option given by it on 07.08.1997 under Notification dated 01.08.1997 for compounded Levy Scheme w.e.f. 01.08.1997; whereas the said Scheme was actually introduced on 01.09.1997 under a different notification, is not correct. It was further held that the option filed by the respondent on 07.08.1997 was a valid application in terms of Rule 96ZP(3) of the Rules w.e.f. 01.09.1997 and the payment of duty is in terms of the notification dated 01.08.1997 and accordingly, annual capacity of the unit was provisionally fixed by the Commissioner, Central Excise at 1186.571 MT as per Rule 3(1) of Hot Re-Rolling Steel Mills Annual Capacity Determination (Amendment Rules), 1997 vide order dated 07.04.1998 is correct. 4. Being aggrieved, respondent once again approached the Tribunal and the Tribunal vide its order dated 07.09.2006 in a cryptic and cavalier manner by referring to its earlier decision in the case of M/S Mitra Steel & Alloys Pvt. Ltd. V. C.C.E, held that when the provisions are omitted without any saving clause, the omitted provisions cannot survive. Accordingly, the impugned order was set aside and the appeal filed by the Assessee was allowed. In the aforesaid factual ground this appeal has been filed. 5. Learned counsel for the Revenue has submitted that the Tribunal has failed to adjudicate the facts of the case and has not addressed itself to the real issue, which arose for determination before it. It is further submitted that in a cryptic and cavalier by simply referring to its earlier decision in the case M/S Mitra Steel & Alloys Pvt. Ltd and without adverting to the facts of the case in hand, the Tribunal allowed the appeal preferred by the respondent. It is further submitted that from perusal of Section 3A(4) of the Act read with Rule 96ZP(3) of the Rules, it is evident that manufacturer shall not be entitled to avail of the benefit of Section 3A(4) of the Act during pendency of the scheme. 6. It is further submitted that from perusal of Section 3A(4) of the Act read with Rule 96ZP(3) of the Rules, it is evident that manufacturer shall not be entitled to avail of the benefit of Section 3A(4) of the Act during pendency of the scheme. 6. We have considered the submissions made by learned counsel for the appellant and have perused the records. Before proceeding further, we deem it proper to examine Section 3 of the Act and Rule 96 of the Rules. Relevant extract of Section 3 as well as Rule 96 of the Rules, reads as under:- Relevant extract of Section 3A(4) of the Act. ……………. ……………. “(4) Where an 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 re-determine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section(3)”. Relevant extract of Rule 96ZP(3) of the Rules “…… ………………. …………………….. (3) Notwithstanding anything contained elsewhere in these rules, a manufacturer may, in the beginning of each month from 1st day of September, 1997 to the 31st day of March, 1998 or any other financial year, as the case may be, and latest by the tenth of each month, pay a sum equivalent to one-twelfth of the amount calculated at the rate of Rs.300/- multiplied by the annual capacity in metric tonnes, as determined under sub-rule(3) of rule 3 of the Hot Re-rolling Mills Annual Capacity Determination Rules, 1997, and the amount so paid shall be deemed to be full and final discharge of his duty liability for the period from the 1st day of September, 1997 to the 31st day of March, 1998, or any other financial year, as the case may be, subject to the condition that the manufacturer shall not avail of the benefit, if any, under the proviso to sub-section (3) or under sub-section(4) of Section 3A of the Central Excise Act, 1944 (1 of 1944). From a conjoint reading of the aforesaid provisions, it is evident that under Rule 96ZP(3), the manufacturer shall not be entitled to avail of the benefit under the proviso to sub-section (3) or under sub-section (4) of Section 3A of the Act while the scheme is in operation. In the instant case, admittedly, respondent itself made an application and had opted for payment of duty under Rule 96ZP(3) on 07.08.1997 pursuant to which the liability to pay the duty of the respondent was determined by the Commissioner, Central Excise vide order dated 07.04.1998. Thereafter on 24.07.1999 when the Scheme was in operation, the respondent again applied for re-determination of his annual production capacity, which was rightly rejected by the competent authority. A Division Bench of Punjab & Haryana High Court in paragraph Nos.11, 12 and 21 of the judgment rendered in the case of Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise, Chandigarh: 2006(10) LCX0069, held as follows:- ….. “11. The provision was inserted in the Act by Finance Act 2 of 1997 with effect from 1.-9-1997. The said provision provided for levy of excise duty by determining capacity of production of notified goods as against levy of excise duty on value of goods under Section 3 of the Act. The provision was later omitted w.e.f. 11-5-2001 by Finance Act 2001. Rules framed with reference to the provision also provided for payment of Excise duty on lump sum basis and the said scheme was applicable on furnishing of an option by the assessee. The provision was upheld by the Andhra Pradesh High Court in Sarwotham Ispat Limited v. Government of India, 1999 (105) ELT 550. The matter was also considered by the Hon’ble Supreme Court in Commissioner of C.Ex. & Customs v. Venus Castings (P) Limited, 2000 (117) ELT 273 . It was observed:- “11…What can be seen is that the charge under the Section is clearly on production of the goods but the measure of tax is dependent on either actual production of goods or on some other basis. The incidence of tax is, therefore, on the production of goods. It cannot be said that collection of tax based on the annual furnace capacity is not relatable to the production of goods and does not carry the purpose of the ct. The incidence of tax is, therefore, on the production of goods. It cannot be said that collection of tax based on the annual furnace capacity is not relatable to the production of goods and does not carry the purpose of the ct. In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. Therefore, it is made clear that the manufacturer, if they have availed of procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3(4) of the Act which is specifically excluded. We find that the view taken by the Andhra Pradesh High Court in Sathawahana Steels & Alloys (P) Ltd. V. Government of India (supra) and the similar view expressed by the Division bench of the Allahabad High Court in Civil Milsellaneous Writ Petition No.1127 of 1999 M/S Jalan Castings (P) Ltd. V. Commissioner of Central Excise & Ors. disposed of on February 28,2000 is reasonable and correct. We overrule the view taken by the Allahabad High Court in Pravesh Castings (P) Ltd., Kanpur Nagar v. Commissioner of Central Excise, Allahabad & another (supra). 12. On the reasoning adopted by us and bearing in mind that in taxation measures composition schemes are not unknown and when such scheme is availed of by the assessee it is not at all permissible for him to turn around and ask for regular assessment, we think, there is no substance in the contention urged on behalf of the respondents.” 12. Thereafter, in Union of India v. Supreme Steels and General Mills, 2001(133) ELT 513 , it was observed:- “3. It was absolutely optional for the manufacturer to opt for payment of excise duty in accordance with sub-rule 3 of Rule 96ZO on the basis of total furnace capacity installed as provided therein. Thereafter, in Union of India v. Supreme Steels and General Mills, 2001(133) ELT 513 , it was observed:- “3. It was absolutely optional for the manufacturer to opt for payment of excise duty in accordance with sub-rule 3 of Rule 96ZO on the basis of total furnace capacity installed as provided therein. The manufacturer cannot opt twice during one financial year first choosing to pay in accordance with sub-rule 3 of Rule 96ZO and thereafter to switch over to actual production basis under Section 3A(4) of the Act, in case it is less than the duty payable under sub-rule 3 of Rule 96ZO. The said sub rule is quite clear that the option under it is available subject to the condition that once having opted for it, benefit if any under sub-s.(4) of Section 3A of the Central Excise Act, 1944 shall not be available. We find that the controversy sought to be raised stands finally settled by a decision of this Court reported in JT2000(4) SC 77-Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd. It has been clearly held that two procedures namely one as provided under sub-s(4) of Section 3A of the Central Excise Act and the other as provided under sub-rule 3 of Rule 96ZO of Central Excise Rules are alternative procedure and the assessee has to opt for one. Once having done so he cannot claim the benefit of the other. …………….. …………….. 21. Thus, even by omission of Section 3A, liability of the assessee thereunder was not wiped out.” 7. Thereafter a Special Leave Petition was preferred before the Supreme Court, which was decided on 24.11.2015. The Supreme Court approved the ratio laid down in M/S Fibre Boards (P) Ltd., Bangalore v. Commissioner of Income Tax, Bangalore; [2015] 376 ITR 596 (SC) and in paragraph NO.24 has held that the aforesaid decision rightly holds that the omission would amount to a repeal and the converse view of the law has led to an omitted provision being treated as if it never existed, as Section 6 of the General Clauses Act would not then apply to allow the previous operation of the provision so omitted or anything duly done or suffered thereunder. 8. In view of the preceding analysis, the substantial question of law framed by this Court deserves to be answered in the negative. 8. In view of the preceding analysis, the substantial question of law framed by this Court deserves to be answered in the negative. In the result the order passed by the Tribunal dated 07.09.2006 is hereby quashed. Accordingly, the appeal is allowed.