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2009 (1) TMI 287 - HC - Central ExciseProduction capacity based duty - whether the duty collected was without the authority of law and liable to be refunded? - Held that:- It appears that the appellant has opted under Rule 963Q for the payment of excise duty on the basis of annual production capacity to be determined by the Commissioner under Section 3A of the Act. The Commissioner Central Excise determined the annual production capacity vide order dated 29th March, 1999 including the galleries. It appears that the appellant has not accepted such determination and has paid the duty under protest. It is admitted that against the order dated 29th March, 1999, the appellant has not filed any appeal, but from the subsequent correspondences referred herein above. It appears that the appellant was disputing the demand of duty on stenter galleries and has treated the said order of the Commissioner as interlocutory order subject to final decision on the verification of the technical expert. According to the appellant, no final order has been passed. It also appears that the appellant has filed fresh declaration referred hereinabove and vide letter dated 25th September, 2000 claimed re-determination on the basis of amendment in the Rule by Notification No. 14 of 2000, dated 1st March, 2000 and the decision by the Tribunal in the case of Chiman Lal Silk Mill (P) v. Commissioner of Central Excise, (2000 (3) TMI 98 - CEGAT, CHENNAI), but these aspects of the matter have not been considered by the Tribunal, which according to us are relevant to adjudicate the issue. Appeal is allowed. The impugned order of the Tribunal dated 3rd June, 2008 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in accordance to the law in the light of the observations made above
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