- (1.) These two writ applications were heard analogously as the subject matters are inter linked. The facts giving rise to the filing of these applications may be summarized thus : (a) The petitioner no. 1 is a manufacturer of vanaspati and its sole manufacturing unit had been functioning at 1, Station Road, New Alipore till April, 2002. Thereafter, in view of the objection raised by the West Bengal Pollution Control Board, the petitioner no. 1 opened a new unit at Bangannagar, South 24 Parganas. However, the old unit at New Alipore is still appearing in the register of the respondent as a unit of the petitioner no. 1, although the petitioners claim that no manufacturing process is now being carried on at that place and the old machineries are lying idle. (b) Central Excise duty on manufacture of vanaspati was at all material time leviable till July 23, 1996. However such duty was re- imposed from March 1, 2003. (c) The Central Government by issuing appropriate notification under the Central Excise Rules, 1944 being no. 27 of 1987 conferred money credit benefit to the manufacturers of vanaspati at the rates mentioned in the notification varying between Rs. 3250/ and Rs. 5000/- depending upon the nature of minor oils used in the process of manufacture. The notification also indicated the terms and conditions for utilization of such benefit. Although the notification no. 27 of 1987 was abolished on August 25, 1989, the selfsame benefit was restored by issue of a fresh notification dated October 11, 1989 bearing no. 45 of 1989. An amount of Rs. 17,32,78,689/ was accumulated to the credit of the petitioner no. 1 in terms of those notifications for the use of minor oils in the process of manufacture as on July 22, 1996. (d) According to the said money credit scheme, a manufacturer is entitled to utilize such credit for an amount not exceeding Rs. 1000/- per MT at any time following the succeeding month in which such money credit accrued. However, from July 23, 1996, the excise duty on vanaspati was abolished and consequently, the petitioner no. 1 was not in a position to utilize such benefit towards the payment of excise duty in terms of the notification conferring such relief. (e) In the circumstances, the petitioner no. 1 filed the first writ application being W.P. no. 137 of 2000 thereby claiming refund of such benefit in cash on the ground that after the abolition of the excise duty, it is no more possible for a manufacturer to get adjustment as per the terms of the notification. ( After re-imposition of the excise duty from March, 2003, the petitioner no. 1 started utilising the accrued money credit after informing the department and had utilised a sum of Rs. 40,56,794/- for payment of the duty with effect from March, 2003, but the excise authorities took objection to such adjustment and by seizing the books of account, forced the petitioner no. 1 to pay the said amount of Rs. 40,56,794/- from its personal ledger account. Hence the second writ application, claiming the benefit of utilisation of the accrued money credit for the payment of the duty on manufacture of vanaspati from March, 2003 at the rate mentioned in the notification no. 49 of 89 by virtue of which such money credit had accrued.
(2.) These applications are opposed by the respondents. So far the first writ application is concerned, it is contended that on the abolition of the excise duty, there is no scope of getting back the accrued benefit in cash. According to the respondent, the benefit can be availed of only in accordance with the scheme, and in the scheme there being no provision of converting the benefit to one by way of return of money, this court cannot give any relief in favour of the petitioner no. 1 which is not borne out by the scheme.
(3.) As regards the second writ application, the defence of the respondent is that the scheme itself having been abolished, there is no scope of any adjustment to the excise duty payable. The further objection taken by the respondent is that even it is assumed for the sake of argument that such relief is available, the petitioner no. 1 cannot get any adjustment of the credit accrued by virtue of any manufacture done in the unit at New Alipore to the duty payable for the goods manufactured in a different unit at Bangannagar. The respondents, thus, pray for dismissal of the both the writ applications.;