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2007 (7) TMI 323 - HC - Central ExciseProduction capacity based duty - Held that:- If the authorities, after declaring particular product as "notified goods", proceeds to fix the annual production capacity of the factory, it has to do so by giving proportionate increase, if during the year under consideration for the purpose of fixation of annual production capacity, the factory was closed for certain period, manufacturer will be able to evade the duty, by taking the production of six months to be the annual production capacity, because factory was closed for six months during the year, taken as standard for the purpose of determination of annual production capacity. We are afraid, proviso relied upon by learned Counsel for the appellant does not come to the rescue of the appe1lant-assessee. On the contrary, the same supports the department during the process of determination of annual production capacity. The benefit of proviso to sub section (3) and sub-section (4) of Section 3A of the Act, is not available to the appellant herein, if it has enjoyed benefit of payment of excise duty under procedure prescribed by Rule 96-ZP(3).Therefore, no substantial question of law arises for our consideration.
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