WA 412/2010 BEFORE THE HON’BLE MR JUSTICE A. K. GOEL THE HON’BLE MR. JUSTICE AMITAVA ROY (Goel,J.) This appeal has been preferred against order dated 20.07.2010, passed by the lea rned Single Judge of this Court in WP(C) No.418 of 2006 dismissing the writ peti tion in terms of an earlier order dated 04.03.2004 passed by this Court in Civil Rule No.2366 of 1998 (M/s Bharat Ferras (P) Ltd. vs. Union of India and Ors.), which order also covered the case of the appellant. Claim of the appellant-writ petitioner was for a direction to determine actual p roduction capacity in terms of Section 3A(4) of the Central Excise Act, 1944, ta king into account the letter dated 26.9.1997. Section 3A of the Act provides for determination of annual capacity of productio n for levy of excise duty on compounding basis at the option of the assessee. Th e said determination of actual production capacity has to be in accordance with the procedure laid down. The assessee was required to make a declaration which w as to be cross checked by the department. According to the assessee, such declar ation was made on 22.9.1997 but the same was revised on 26.9.1997. However, the department determined the capacity on 17.11.1997 on the basis of original declar ation ignoring the revised declaration. The petitioner had earlier approached this Court challenging determination of ca pacity by the order dated 17.11.1997 on the plea that the factory of the petitio ner was not continuously running and, therefore, determination of capacity was r equired to be reviewed. This plea was opposed on the ground that under the schem e of law once an option for compounded levy was exercised, actual running of the factory was not relevant and was not a ground to review the determination of ca pacity. Only plea which could be considered was whether option had been exercise d by the assessee. Accordingly, the writ petition along with other petitions was disposed of with a direction to verify whether an option for the compounded lev y had been exercised by the writ petitioners. By filing a fresh petition, the pe titioner sought re-determination of the capacity on the ground that revised decl aration of the petitioner had not been taken into account. In view of earlier judgment, the writ petition has been dismissed. We have heard Mr. O. P. Bhati, learned counsel for the appellant and Mr. D. Das, learned counsel for the respondents. Learned counsel for the appellant submits that the issue raised in the second pe tition was different from the issue raised in the earlier petition and the secon d petition should have been decided on merits of the fresh contention. This plea cannot be accepted. Admittedly, at the time of filing of the first pet ition it was open to the petitioner to raise the plea which is now sought to be raised. The plea now taken is barred by the principle of constructive res judica ta. Moreover, re-determination of capacity by the order dated 17.11.1997 has rem ained operative for the relevant period and plea raised in the writ petition fil ed in the year 2006 suffers from laches. It may also be mentioned that the annua l capacity determined with reference to Section 3A is not liable to be re-determ ined on the ground that actual production was less than the capacity earlier det ermined, as held in recent judgment of the Hon’ble Supreme Court in Commissioner of Central Excise, Chandigarh vs. M/S Doaba Steel Rolling Mills, reported in 20 11 STP (Web) 570 SC. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. The appeal stands dismissed.