1989 (1) TMI 194 - AT - Central Excise

Issues Involved:
1. Admission of additional evidence.
2. Eligibility for incentive rebate under Notification No. 132/82.
3. Prospective vs. retrospective application of Notification No. 193/82.
4. Time bar on recovery of rebate.

Issue-wise Detailed Analysis:

1. Admission of Additional Evidence:
The respondents filed an application to submit additional evidence, including an affidavit from the Managing Director, a registration order, a registration certificate, and a letter from the Ministry of Industry. The department objected, claiming these documents pertained to a different unit. However, the respondents clarified that the original name of their company was M/s. Ulundurpet Co-operative Sugar Mills Ltd. The Tribunal found the documents contemporaneous and relevant to the company's existence date, which was vital for the appeal's decision. Consequently, the application for additional evidence was allowed.

2. Eligibility for Incentive Rebate under Notification No. 132/82:
The respondents claimed a refund of Rs. 34,66,921.23 under Notification No. 132/82. The Assistant Collector rejected this claim, stating that the mill should have been in existence during the three preceding sugar years to qualify for the rebate. The Collector (Appeals) disagreed, noting that the notification did not explicitly require the factory to be in existence for the entire preceding three years. The Tribunal upheld this view, citing previous decisions that the absence of production in the base year does not disqualify a factory from the rebate. The Tribunal concluded that the respondents were entitled to the rebate even if they were not in existence for the entire preceding period.

3. Prospective vs. Retrospective Application of Notification No. 193/82:
The respondents argued that the amending Notification No. 193/82 should have retrospective effect. The Collector (Appeals) held that it applied only prospectively. The Tribunal supported this view, referencing previous decisions and the Supreme Court's ruling that the rule-making authority cannot make rules with retrospective effect. The Tribunal emphasized that laws are generally presumed to be prospective unless explicitly stated otherwise. Thus, the amending Notification No. 193/82 was held to apply only from its issuance date, not retrospectively.

4. Time Bar on Recovery of Rebate:
The respondents contended that the recovery of the rebate, initially sanctioned on 13.5.1983 but later rejected on 25.1.1984, was time-barred as the show cause notice was issued on 30.11.1983, over six months after the sanction. The Tribunal agreed, citing previous decisions that any recovery due to erroneous refunds must adhere to statutory time limits. The Tribunal clarified that the date of refund is when the credit is actually taken, not when the refund order is passed. This view was upheld, and the Assistant Collector was instructed to consider the time bar when deciding the respondents' claim.

Conclusion:
The Tribunal upheld the Collector (Appeals) decision, allowing the respondents' claim for partial exemption under Notification No. 132/82, even if they were not in existence during the preceding three years. The Tribunal also confirmed that Notification No. 193/82 applies prospectively. The department's appeal was dismissed, and the cross-objections were disposed of, with the time bar on recovery of rebate being upheld.

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