1987 (11) TMI 85 - HC - Central Excise

Summary

Issues Involved:
1. Legality of demand notices for refund of excess rebate.
2. Interpretation of terms "leviable" and "payable" in the context of the notification.
3. Applicability of limitation period for the demand.
4. Maintainability of writ petitions in the presence of an alternate remedy.

Summary:

1. Legality of Demand Notices for Refund of Excess Rebate:
The petitioners, Sahakari Sakhar Karkhanas Ltd., challenged the demand notices issued by the Superintendent, Central Excise, directing them to refund excess rebate claimed under Notification No. 108/78, dated 28th April, 1978. The Collector of Central Excise (Appeals) dismissed the appeals filed by the petitioners against these demand notices. The petitioners contended that the rebate was granted as an incentive for increased production and should not be altered by the Administrative Officer. They argued that the rebate was final and not subject to provisional assessment.

2. Interpretation of Terms "Leviable" and "Payable":
The petitioners argued that there is a significant difference between "duty payable" and "duty leviable," and these terms should not be interpreted to mean the same thing. They relied on various judicial decisions to support their contention. On the other hand, the respondents contended that the initial assessment was provisional, and the terms "leviable" and "payable" should be interpreted in the context of the notification. The court agreed with the respondents, stating that the expressions "leviable" and "payable" must be interpreted in the context of the notification and the scheme of the Act. The court cited the Delhi High Court's decision in Orient Paper Mills Limited v. Deputy Director of Inspection, Customs and Central Excise & others, which held that the terms should be interpreted to mean the same thing in the context of the notification.

3. Applicability of Limitation Period for the Demand:
The petitioners argued that the demand was barred by limitation as it was made beyond the period of six months. The respondents contended that the final assessment was made on 9th August, 1979, and the demand was not barred by limitation. The court held that the initial assessment was provisional, and the final assessment came later. Therefore, Rule 10 did not apply, and the demand was not barred by limitation.

4. Maintainability of Writ Petitions in the Presence of an Alternate Remedy:
The respondents argued that the petitioners had an alternate and efficacious remedy u/s 36 of the Act, and therefore, the writ petitions were not maintainable. The court did not find it necessary to decide this contention, as the petitioners argued that the alternate remedy had become illusory due to a decision by the Finance Ministry.

Conclusion:
The court agreed with the view taken by the Collector, Central Excise (Appeals) and found no substance in the writ petitions. The rule was discharged in all the writ petitions with no order as to costs.