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2017 (9) TMI 453 - HC - Central ExciseRecovery of duty u/s 11D - sugar incentive scheme - revenue contended that appellant had collected the amount of 85/- per quintal however had deposited 52/- per quintal with the Central Government - Interpretation of Statute - It is the case of the appellant that the said sugar incentive scheme was commenced by the Government of India in terms of provisions of section 3 of the Essential Commodities Act 1955 with an object to encourage indigenous sugar production and to achieve the target envisaged whereby the said incentives under the said scheme was partly based on higher percentage of free sale sugar quota and partly on excise duty concession/exemptions pursuant to the provisions of section 5-A of the said Act read with Rule 8(2) of the Central Excise Rules 1944 by issuance of notifications dated 27th April 1983 to enable the new sugar factories to repay the advances and loans out of the additional funds generated out the benefits of those sugar incentive scheme - Whether the Tribunal committed error while interpreting and construing the provisions of Section 11-D of C.E.A. 1944 while ignoring the interpretation and construction of provisions of Section 5-A of C.E.A. 1944 granting exemption from duty of excise to the Appellant / Assessee which is required to be construed liberally while upholding the impugned order passed by the respondent Authority? Held that - It is not in dispute that when the Government of India Ministry of Food and Civil Supplies had issued the said incentive scheme on 4th November 1987 for new sugar factories and expansion projects Section 11-D of the Central Excise and Salt Act 1944 was not introduced by the Central Government. The Constitutional validity of Section 11-D of the Central Excise and Salt Act 1944 has been already upheld by the Supreme Court. It is held that the incentive scheme is nothing but the executive instructions of the Ministry of Food and Civil Supplies and thus it could not override the provisions of Section 11-D of the Central Excise and Salt Act 1944 enacted by the Parliament - The learned Collector of Central Excise and Customs has rendered a finding that it was established that the excess amount was recovered and retained by all the assessees including the appellant herein representing the duty of excise as an incentive under the incentive scheme dated 4th November 1987 illegally and thus the appellant was liable to pay the said amount as demanded in the show cause notices issued by the authority. A perusal of the appeal memo filed by the appellant in this appeal indicates that no ground is raised by the appellant contending that though the appellant had produced the relevant documents to show that the appellant had not retained any amount out of the amount recovered as duty from its customers including the rebate the Collector of Central Excise and Customs as well as the said Tribunal have not considered such documents. In our view the Collector of Central Excise and Customs has after granting sufficient opportunity to the appellant dealt with all the issues and fact as well as law and has rightly upheld the demand raised in the show cause notices issued by the authority. Insofar as the submission of the learned counsel for the appellant that there was no opportunity to engage an Advocate was granted by the learned Collector of Central Excise and Customs is concerned this submission of the learned counsel is ex-facie contrary to the averments made in paragraph no.8 of the appeal memo filed by the appellant before the said Tribunal in which it has been admitted that the said Collector of Central Excise and Customs had heard the appellant through their Advocate in those six show cause notices. A perusal of the order passed by the learned Collector of Central Excise and Customs and more particularly paragraph no.4 of the said order also clearly records that a personal hearing was given to the appellant through its Advocate Shri K.P. Joshi. The appellant did not file any proceedings for enforcement of the said incentive scheme before any Court of law. Be that as it may in our view the learned Collector of Central Excise and Customs has rightly held that no such incentive scheme which was in the nature of executive instructions had in any event was subject to further notification to be issued by the Government could be given effect to while considering the provisions of Section 11-D of the Central Excise and Customs Act - even otherwise in view of the non obstante clause provided in Section 11-D of the Central Excise and Salt Act 1944 which was introduced later in point of time the said provision will prevail over the provisions of the Essential Commodities Act 1955 having similar non obstante provision in Section 6. Appeal dismissed - decided in favor of Revenue.
Issues Involved:
1. Interpretation and construction of Section 11-D of the Central Excise Act, 1944 vis-a-vis Section 5-A of the Central Excise Act, 1944. 2. Justification of the Tribunal's decision to uphold the impugned order by the respondent authority. 3. Applicability and effect of the 1987 Incentive Scheme for new sugar factories. 4. Alleged procedural lapses by the Collector of Central Excise and Customs. 5. Application of the principle of promissory estoppel. 6. Relevance of prior judgments and notifications in the context of the case. Detailed Analysis: 1. Interpretation and Construction of Section 11-D vis-a-vis Section 5-A of the Central Excise Act, 1944: The appellant argued that the Tribunal erred in interpreting Section 11-D without considering Section 5-A, which grants excise duty exemptions. The appellant claimed entitlement to retain the difference in excise duty between levy and free sale sugar under the 1987 Incentive Scheme. The court, however, held that Section 11-D, introduced later, has a non obstante clause that overrides earlier provisions, including Section 5-A. 2. Justification of the Tribunal's Decision: The Tribunal upheld the order of the Collector of Central Excise and Customs, which demanded the differential excise duty from the appellant. The court found that the appellant had collected excise duty at a higher rate (?85 per quintal) but paid a lower rate (?52 per quintal) to the government, thus retaining the difference. This action was deemed a violation of Section 11-D, which mandates that any duty collected must be paid to the government. 3. Applicability and Effect of the 1987 Incentive Scheme: The appellant relied on the 1987 Incentive Scheme, which allowed new sugar factories to pay excise duty at concessional rates and retain the difference. The court noted that while the scheme provided certain benefits, it was subject to notifications issued by the Ministry of Finance. The relevant notifications did not authorize the retention of excise duty collected in excess of the concessional rates. 4. Alleged Procedural Lapses: The appellant contended that the Collector of Central Excise and Customs did not provide an opportunity to produce documents or to be represented by an advocate. The court found this claim factually incorrect, noting that the appellant was represented by an advocate and had the opportunity to present documents. The appellant failed to produce evidence showing that the differential amount collected was given as a rebate to customers. 5. Application of the Principle of Promissory Estoppel: The appellant argued that the government was estopped from enforcing Section 11-D due to the earlier incentive scheme. The court rejected this argument, stating that the incentive scheme was an executive instruction and could not override statutory provisions. The court also noted that the appellant did not pursue any legal proceedings to enforce the incentive scheme. 6. Relevance of Prior Judgments and Notifications: The appellant cited several judgments, including Belapur Sugar & Allied Industries Ltd. and Mahabir Vegetable Oils Pvt. Ltd., to support their case. The court distinguished these cases, noting that they involved different factual scenarios and legal issues. The court emphasized that Section 11-D, with its non obstante clause, prevails over earlier notifications and schemes. Conclusion: The court dismissed the appeal, upholding the demand for the differential excise duty. The substantial questions of law were answered against the appellant and in favor of the Revenue. The court found that the appellant's reliance on the 1987 Incentive Scheme and prior judgments was misplaced, and that Section 11-D of the Central Excise Act, 1944, takes precedence.
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