JUDGEMENT: ZAFFAR HUSSAIN MIRZA, J.- 1. In this appeal by special leave appellants Messrs Swat Textile Mills Limited have challenged the validity of the levy of Central Excise duty- on the basis of production capacity of their mills by the Central Board of Revenue, under subsection (4) of section 3 of the Central Excise and Salts Tax Act, 1944. Sub-section (4) was inserted by the Finance Act, 1966 so as to empower the Central Board of Revenue to create machinery to impose and recover duty of excise on various excisable goods on the basis of production capacity, of the mills, as an alternative for the levy of the said duty on the pre-existing basis of actual production of the excisable goods.
2. Leave was granted in this case to examine the contention challenging section 3 of the Act as ultra vires in so far as it provided for the imposition of duty both on the basis of "capacity and actual production", by means of amendment in the legislative entry No. 43 in (the 1962 Constitution, by the Constitution (Sixth Amendment) Act, 1966. The leave order Proceeded on the basis that a number of similar petitions involving the similar law points were allowed and leave was granted to examine these points.
3. Both the learned counsel for the parties have pointed out to us that this Court has disposed of the connected appeals by a common judgement reported as Zaibtan Textile Mills Limited v. Central Board of Revenue PLD 1983 SC 358? PTCL 1983 (CL) 230 and concede that the decision in the present appeal turns on the said judgment which fully covers the points raised in it.
4. Accordingly this appeal is dismissed with no order as to costs.