Back
CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
G.A. BRAHMA DEVA, J.H. Joglekar, JJ.
Kisan Sahakari Chini Mills Ltd. -Appellant
Versus
Collector of Central Excise, Meerut -Respondent
Final Order Nos. E/220-224/98-D Appeal Nos. E/358 & 3068/90-D E/359, 456 & 457/90-D, E/220 of 1998, 224 of 1998, E/358 of 1990, 3068 of 1990, E/359 of 1990, 456 of 1990, 457 of 1990
Decided On : 19-12-1997
Vipin Garg,R.S. Sangia
Per J.H. Joglekar :
The Collector (Appeals) disposed of six appeals before him vide common impugned order dated 10.11.1989. Four of the cases before him related to M/s. U.P. State Sugar Corporation Limited and other two appeals were filed by M/s. Kisan Sahakari Chini Mills Ltd. Today, three appeals filed by M/s. U.P. State Sugar Corporation and two appeals filed by M/s. Kisan Sahakari Chinni Mills Ltd., are before us. The sixth appeal decided by the Assistant Collector on 22.7.88 which bore No. 394/CE/MRT/88 before the Collector (Appeals) and which is part of the impugned order, does not seem to be agitated before us. The learned Advocate Shri Garg who appeared in all the five matters inspite of having been given some time, admits to not having knowledge whether those assessees had filed the appeal against that order. In this common order, therefore, we are disposing of five appeal filed before us.
2. In the following appeal numbers before us, the basic order of the Assistant Collector relates to approval of classification lists. These lists were specifically filed to claim benefit of Notification Nos. 410/86-CE dated 10.9.1986, No. 237/87 dated 15.10.87 and No. 109/87 dated 10.4.87.
(1) E/358/90-D. C.L. filed by M/s. Kisan Sahakari Chinni Mills Ltd., approved on 28.7.87.
(2) E/359/90-D. In the case of U.P. State Sugar Corporation Ltd., letter of Inspector dated 27.8.87 communicating the decision that under Notification No. 109/87 clearance of levy and free sale sugar should be made in the ratio of one to one.
(3) E/456/90-D in the case of U.P. State Sugar Corporation the remarks of the Assistant Collector on the page of the classification list to the effect that related quantity was to be cleared in the ratio of one to one.
(4) Appeal No. E/3068/90-D. Kisan Sahakari Chinni Mills Ltd., The order of the Assistant Collector on the claim for exemption under Notification No. 109/87-CE.
(5) In Appeal No. E/457/90-D filed by M/s. U.P. State Sugar Corporation Limited, the order relate to denial of refund claim filed by the assessees.
3. The learned Advocate stated that the notification provided for clearance without payment of duty of sugar produced during certain period. The notification did not prescribe ratio in which the clearances of free sugar and levy sugar were to be made. The assessee would have been eligible to clear the entire production as free sale quota if he so wished. He stated that the Ministry vide their F.No. 331/3/87-TRU dated 7.7.88 had made this very clear (1988-ELT-T-5). He stated that although the notification permitted the clearance without payment of duty, as a matter of practice, all the manufacturers initially cleared the goods on payment of duty and subsequently took rebate or refund in their P.L.As. Therefore, the claim of refund made by the assessee which was dealt with by the Assistant Collector in his order dated 14.3.89 dealt with in appeal No. E/457/90-D, were correctly made and could sustain. On this ground, he sought relief in all these cases.
4. Shri Sangia, learned JDR conceded fairly that the notification did not support the action of the Assistant Collector in laying down the ratio of clearance between the levy sugar and free sale sugar. He, however, claimed that once in pursuance of these orders, the clearances have been made then the refund claim, if any, made could not be for the amount greater than what was actually paid. On this ground, he defended the rejection of the refund claims in the Assistant Collector's order dated 14.3.89. In support of his contention, he cited the judgement of the Tribunal in the case of Punjab Khand Udyog (Final Order No. 496/97-D dated 18.6.1997).
5. We have carefully gone through the rival claims and have also seen the cited notifications, departmental instructions and the case law.
6. We accept the point made by the learned Advocate that contents of the notification did not enable the Assistant Collector to direct the assessee as to the ratio in which the assessee
