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2014 (12) TMI 1080 - AT - Central ExciseCompounded Levy Scheme of Section 3A of the Central Excise Act, 1944 read with Rule 96ZO - determination of the annual capacity of production of the appellant - Held that:- When the appellant had informed the department from the very beginning that they are operating only one furnace w.e.f. 1-3-2001 and other furnace of 1.00 M.T. capacity is idle, and when initially the duty liability had been determined provisionally on the basis of both the furnaces being operational, the Commissioner should have passed a final order determining their annual capacity of production after considering the appellant’s representation that the other furnace has never been operated and is lying idle. But no final order was passed. Thus, the department’s action of recovery of differential duty is without any basis. Even if this matter is remanded for re-determination of capacity of production and their duty liability, in view of the judgment of the Hon’ble Gujarat High Court in the case of Krishna Processors (2012 (11) TMI 954 - GUJARAT HIGH COURT), the proceedings for recovery of differential duty, if any, cannot be initiated - order of the department demanding the differential duty is set aside - Decided in favour of assessee.
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