- (1.) THE petitioner, M/s. Cuddapah Cooperative Sugars Limited, Doulatapuram, Cuddapah District, represented by its Administrative Officer, is seeking a writ or mandamus directing the respondents - Union of India, Appellate Collector of Central Excise and Assistant Collector of Central Excise, Anantapur, to refund Rs. 8,38,975. 85 paid by way of excise duty for the period February 1978 to August 1978 when Notification No. 35/76-C. E. , under which the petitioner-Factory was entitled to claim exemption, was in force.
(2.) THE petitioner had set up a sugar factory in the year 1977 and it commenced production on 27. 11. 1977. The excise duty leviable on the sugar manufactured by the factory was normally at the rate of 37-1/2%. In order to help the newly started sugar factories the Government of India issued Notification No. 35/76-C. E. in exercise of the powers conferred under Rule 8 (1) of the Central Excise Rules, 1944 with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, on 25. 2. 1976 exempting for a period of three years from payment of excise duty and additional excise duty, sugar produced by a newly set up factory which commenced production for the first time on or after 1st April, 1975 which is in excess of 35% of its average production of sugar from so much of the duty of excise leviable thereon as is in excess of duty calculated at 15% and 5% ad valorem respectively. In other words, as a result of this exemption a newly established sugar factory which would otherwise pay 37-1/2% excise duty would be liable to pay only at the reduced rate of 20%. For the period between February 1978 and August 1978 the petitioner paid excise duty at the normal rate of 37-1/2%. The petitioner made an application on 28. 1. 1982 requesting the Excise officials for refund of the excess amount of excise duty collected for the above period. That application was rejected by the Assistant Collector of Central Excise on 7. 6. 1982 in limine on the ground that it was preferred beyond the period of six months prescribed under Rule 11-B of the Central Excise Rules. On appeal, the Appellate Collector remanded the matter to the Assistant Collector with a direction to afford an opportunity to the petitioner and then dispose of the matter on meritsgainst that order was dismissed by the appellate Collector on 27. 12. 1983.
(3.) THE petitioner is seeking refund of the excess amount of Rs. 8,38,975. 85 collected during the period February 1978 to August 1978 on the ground that the respondents were not entitled to retain what was illegally collected. One of the grounds on which the writ petition is grounded is that the mistake in regard to the applicability of the notification was on both sides - the petitioner as well as the Excise officials.;