1984 (5) TMI 246 - AT - Central Excise

Summary

Issues Involved:
1. Reprocessing of sugar.
2. Apportionment of excess production for rebate calculation.
3. Method of calculation followed by the second Assistant Collector.
4. Applicability of the interpretation from the Bhopal Sugar Industries case.

Issue-wise Detailed Analysis:

1. Reprocessing of Sugar:
The appellants confirmed that they had no grievance regarding the reprocessed sugar, and this issue need not be further pursued.

2. Apportionment of Excess Production for Rebate Calculation:
The appellants argued that the Trade Notice issued by the Collector of Central Excise, Baroda, could not be followed as it was issued after the production and clearances had taken place. The first Appellate Collector accepted this argument, stating it was not reasonable to expect compliance with a notice issued post-facto. This finding was not challenged through revisional proceedings under Section 36(2) of the Central Excises and Salt Act, and thus, it was accepted that the excess production should be apportioned in the ratio of 65% levy sugar and 35% free sale sugar.

3. Method of Calculation Followed by the Second Assistant Collector:
The appellants contended that the second Assistant Collector erroneously calculated the slabs of excess production. Instead of breaking up the excess production into slabs of 7.5%, 10%, etc., and then dividing each slab into levy sugar and free sale sugar, the second Assistant Collector divided the total excess production first into levy and free sale sugar and then into slabs. This method led to incorrect percentages of excess production for each category. The Tribunal agreed with the appellants, stating that the correct method was to first break up the total excess production into slabs and then divide each slab into levy and free sale sugar in the ratio of 65% and 35%.

4. Applicability of the Interpretation from the Bhopal Sugar Industries Case:
The appellants sought to apply the interpretation from the Bhopal Sugar Industries case, which held that the percentages in the notification should be percentages of the excess production rather than the average production. Although this argument was raised for the first time during the hearing, the Tribunal considered it as a point of law permissible at this stage. The Tribunal noted that the appellants' claim did not involve any change in the factual submissions or the figures of average and excess production. The claim was based on seeking the benefit of a more favorable interpretation of the notification following subsequent judicial decisions. The Tribunal directed that the rebate be calculated by working out the slabs as percentages of the excess production, and then dividing each slab into levy and free sale sugar in the proportion of 65% and 35%.

Conclusion:
The Tribunal directed that the amount of rebate due to the appellants be recalculated by applying the interpretation from the Bhopal Sugar Industries case, ensuring that the slabs are percentages of the excess production and then divided into levy and free sale sugar. The rebate should be calculated accordingly, with the total rebate admissible being granted to the appellants.