THAKKER, J. - (1.) BOTH these appeals arise out of a common order passed by the Customs Excise and Gold (Control) Appellate Tribunal, Western Regional Bench at Bombay (hereinafter referred to as 'CEGAT) on 1st June, 1999 by which it confirmed the orders in original passed by Assistant Collector Central Excise, Valsad and affirmed by Collector of Central Excise (Appeals), Ahmedabad.
(2.) BEFORE dealing with the points raised by the parties in the present appeals, relevant facts of both the cases may be stated in brief Civil appeal no. 6832 of 1999 is filed by M/s. Sahakari Khand Udyog Mandal Ltd. ('Mandal' for short). According to the Mandal, it is engaged in manufacturing sugar falling under sub item (1) of Item No. 1 of the First Schedule to the Central Excise and Salt Act, 1944 (hereinafter referred to as 'the Act'). The appellant-Mandal vide its letter dated 14th August, 1978 addressed to the Range Forest Officer, Billimora, claimed rebate of Rs.6,92,779.59 ps. The refund was claimed on the basis of Notification No. 257/76 dated September 30, 1976. The Notification was issued by the Government in exercise of the powers under sub-rule (1)of Rule 8 of Central Excise Rules, 1944 (hereinafter referred to as 'the Rules'). It inter alia provided for exemption from payment of excise duty leviable thereon in excess of average production of sugar of the corresponding period of preceding three years. The Notification also provided that such exemption would be on sale of sugar as specified in columns 3 and 4 as levy sugar and free sale sugar. According to the appellant-Mandal, the production of sugar by the Mandal during the preceding three years was as under: 1973-74 - 1,68,636 quintals 1974-75 - 1,65,308 quintals 1975-76 - 1,30,595 quintals Thus, total production of three years was 4,64,539 quintals. The average production of three years for the period of 1973- 74, 1974-75 and 1975-76 was 1,54,846.33 quintals (4,64,539/ 3). Since production of sugar for the year 1976-77 was 2,09,982 quintals, the appellant-Mandal was entitled to benefit of exemption from octroi duty for excess production of 55,135.67 quintals. The appellant, therefore, submitted its claim for Rs. 6,92,779.59 ps.
(3.) THE Assistant Collector of Central Excise, by an order dated 29lh March, 1993, held the claim to be time barred under Section 11B of the Act as it was filed after six months. He also held that for an amount of Rs.1,348.80 ps., the claimant was not entitled as the claim related to 48 kgs. of M/s. Sahakari Khand Udyog Mandal Ltd. v. Com. of Central Excise [THAKKER, J.] SC 299 sugar which was re-processed sugar and hence not permissible. Regarding the amount of Rs.6,92,779.59 ps., the Assistant Collector held that to get benefit of exemption, excess sugar was to be sold as levy sugar and free sale sugar in the ratio of 65 : 35 respectively. The appellant claimed the amount as under: JUDGEMENT_296_JT3_2005Html1.htm On going through actual sale by the appellant, however, it was found that out of excess production of 55,135.67 quintals sugar, the Mandal had sold sugar as levy sugar and free sale sugar as under: JUDGEMENT_296_JT3_2005Html2.htm ;