COLLECTOR OF CUSTOMS AND CENTRAL EXCISE Vs. S VALLABHBHAI PATEL KHAND UDYOG CO

JUDGEMENT

(1.) THIS is an appeal brought forth by the department Collector of Customs & Central Excise, Rajkot against the respondents, M/s. Shri Sardar Vallabhbhai Patel Khand Udyog Co. against the order of the Collector of Customs & C. Ex. (Appeals) Bombay bearing No. V-2(18)955/87, dated 20-9-1988. The brief facts for the purpose of disposal of the appeal can be stated as below:

(2.) Shri. Mondal, the learned Sr. Departmental Representative, on behalf of the department contended that the Collector (Appeals), has completely ignored the provisions of Section 11-B, which are mandatory in nature and it is a well-settled law as decided by the Supreme Court in Miles India case that the authorities functioning under the statue cannot over-look the provisions of Section 11-B. Narrating the facts of the case he stated that in this case as per the Notification No. 132/82, initially, the respondents were not eligible for exemption for excess production because by virtue of para 4 thereof, in the sugar factory where production during the preceding three sygar years was Nil, exemption in not available to the sugar produced during the period from 1-5-1982 to 30-9-1982. In the case of the respondents, they had not produced any sugar during the preceding three sugar years. Subsequently, by a Notification No. 193/82, dated 11-6-1982, para 4 stated above was amended so as to enable the respondents to get the benefit of exemption in respect of the entire production during May to September, 1982, as excess production. He also produced the details of clearance of sugar produced in excess during the period from May to September, 1982. According to the details of clearances, the last date of clearance of excess production being 22-2-1983, refund claim having been filed on 7-3-1983, it could be entertained only for a period of six months, prior to this date and hence, refund claim is valid only in respect of clearances effected on or after 7-9-1982. There is no scope for incoporating or construing a different crucial date other than that laid down in Section 11-B as the relevant date. He contended that in this case, relevant date referred to in (d) of Section 11-B is applicable. According to which the date of payment of duty is the relevant date. In view of this mandatory provision, the refund claim is valid only in respect of clearances effected on and from 7-9-1982 onwards. Hence, the order of the Collector (Appeals) treating the crucial date as 1-10-1982 and applying the period of limitation of six months from that date is not legally correct and sustainable. Hence the Collector (Appeals) order is required to be set aside.

(3.) AFTER hearing both sides and perusing the available records, we observe from the arguments of both sides that the main issue to be decided is only the question of time bar. Both sides have not addressed any argument with regard to the question of interpreation of the exemption notification. The issue to be determined is the relevant date for purpose of computing the time limit under Section 11-B of the Central Excises & Salt Act in the context of the provisions of notification. The following facts are undisputed. During the period from May to September, 1982, the respondents were not eligible for exemption in terms of Notification No. 132/82 in the intial stages till the notification was amended on 11-6-1982. Hence, during the period upto 11-6-1982, they could not have availed this exemption. Now the notification again talks about exemption in respect of sugar produced during the period from 1st day of May, 1982 and ending with the 30th day of September, 1982 which is in excess of the average production of the corresponding period of the preceding three sugar years. This is what is eligible exemption as per the Notification No. 132/82. By way of amendment of para 4 of notification, it has been laid down as below ;