S. B. Sinha, J. - (1.) Leave granted.
(2.) This appeal is directed against a judgment and order dated 11.02.2005 passed by a Division Bench of the Gujarat High Court in Tax Appeal No. 427 of 2004 whereby and whereunder the appeal preferred by the appellant herein from a judgment and order of the Customs, Excise and Gold Control Appellate Tribunal dated 22nd May, 2003 as well as Miscellaneous order dated 6th February, 2004, was dismissed.
(3.) The issue involved in this appeal is as to how the deemed annual production in terms of Section 3A of the Central Excise Act, 1944 which was brought into force with effect from 14.05.1987 should be determined. Appellant herein installed an induction furnace, the capacity whereof was 8 M.Ts. It had asked the Gujarat State Electricity Board (Board) for supply of 3000 KVA of electrical energy. The Board agreed to supply only 1900 KVA input of power. The said furnace was manufactured by Inductotherm (India) Ltd. Keeping in view the fact that the appellant could not obtain supply the requisite quantity of electrical energy, it thought of reducing the capacity of the said induction furnace. According to it, the capacity was brought down to 4 1/2 M.Ts. from 8 M.Ts. Appellant contends that the Department was informed thereabout. Allegedly, an inspection was carried out and the capacity of the said induction furnace was also noticed by the inspecting team. Despite the same, a show cause notice was issued as to why the deemed annual production should not be determined on the basis that the capacity of the said furnace was 8 M.Ts. A finding of fact was arrived at by the concerned authorities that the capacity of the said furnace was 8 M.Ts, and not 4 1/2 M.Ts.;