Customs, Excise and Gold Tribunal - Delhi
Doodhaganga K. Sahakari Sakkar ... vs C.C.E. on 14 May, 1996
Equivalent citations: 1996(86)ELT411(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. This appeal is directed against the finding of the Collector (Appeals) holding that the benefit of Clause 3(i) of Notification No. 257/76, dated 30th September, 1976 was not available to the appellants as the factory was not in existence for the preceding five years.
2. Shri Rohit Tandon, Advocate appearing for the appellants submits that the existence of the factory for all the five years was not required. He relied upon the judgment of the Hon'ble Bombay High Court in the case of Balasaheb Desai Sahakari Sakhar Karkhana Ltd. v. Union of India and Ors. reported in 1982 (10) E.L.T. 866 (Para 5). He submitted that this decision of the Hon'ble Bombay High Court was followed by the Tribunal in Collector of Central Excise v. Marathwada Sahakari Sakhar Karkhana Ltd. reported in 1987 (29) E.L.T. 614. Ld. Counsel submitted that it has been held by the Hon'ble Bombay High Court that for the purpose of this notification it was not necessary that the factory should have been in existence for all the five years. On the question of average as to how it should be arrived at it was argued that for the purpose of Clause 4 of the notification cited supra the determination for arriving at the average shall be the number of years during which the factory actually worked.
3. Ld. Counsel submitted that it is evident from the Order-in-Original that the production during the year 1976-77 was of the order of 2,22,491 quintals and that the production during the year 1973-74 was nil; during the year 1974-75 it was 98,039 and during the year 1975-76 it was 1,66,014. Ld. Counsel submitted that from the above figures, it was very clear that the production during the year 1976-77 was higher than the average production during the years 1974-75 and 1975-76 during which the factory worked. Ld. Counsel therefore submitted that their case was fully covered by the decision of the Hon'ble Bombay High Court.
4. Shri Sanjeev Sachdeva, SDR reiterated the findings of the Ld. Collector (Appeals).
5. Heard the submissions of both sides. We find that only two issues have come up for our decision in this case. The first issue is as to how to calculate the period of existence for the purpose of Clause 3(i) of Notification 257/76 dated 30th September, 1976 and the second issue was whether the appellants qualify Clause 4 of the notification which requires that the production during the year 1976-77 should be more than the average production for the years 1974-75 and 1975-76.
6. On perusal of the figures given in the Order-in-Original we find that the production during the year 1976-77 was of the order of 2,22,491 quintals whereas the average production during the years 1974-75 and 1975-76 was 1,32,027. Thus the appellants qualified for the purpose of Clause 4 of Notification No. 257/76.
7. The second issue was as to how average was to be calculated i.e., where a factory was in existence for less than five years or was not functional during all the five years. We find that this aspect was looked into by the Hon'ble Bombay High Court in the judgment supra whereunder they held that it is not necessary that the factory should be in existence for all the five years for which average is to be taken. Having regard to this finding of the Hon'ble Bombay High Court, we hold that the appellants were entitled to grant of rebate on excess production sugar during the period of October and November, 1976 i.e. from 1-10-1976 to 30-11-1976. In this view of the matter the impugned order is set aside and the appeal is allowed.