1994 (6) TMI 103 - AT - Central Excise

Summary

Issues:
1. Refund claim rejection based on compliance with Notification No. 35/76-C.E.
2. Entitlement to benefits under Notification No. 35/76-C.E. despite availing benefits under Notification No. 210/73-C.E.

Analysis:
1. The appeal concerned a refund claim filed by the appellants for excess duty paid on sugar cleared during a specific period. The claim was made under Notification No. 35/76-C.E., which required a certificate from the Chief Director of Sugar & Vanaspati to avail of certain incentives. The Assistant Collector rejected the claim due to the lack of a certificate at the time of filing. The Collector (Appeals) upheld this decision, leading to the appeal before the Tribunal.

2. The appellants argued that they submitted a provisional certificate of eligibility along with the claim, as the final certificate was not issued at the time. They contended that the provisional certificate was valid until the final one was issued, and the claim should not be rejected for this reason. Additionally, they asserted that since their factory was set up after 1-4-1974, they were entitled to benefits under Notification No. 35/76-C.E., even though they were availing benefits under Notification No. 210/73-C.E. The appellants relied on a decision of the Allahabad High Court to support their position.

3. The Revenue, represented by the SDR, argued that besides the certificate issue, the appellants were not eligible for benefits under Notification No. 35/76-C.E. because they were already availing benefits under Notification No. 210/73-C.E. The Revenue highlighted the proviso in Notification No. 35/76-C.E. as a basis for their argument.

4. The Tribunal examined the provisions of Notification No. 35/76-C.E. and concluded that the appellants met the conditions for eligibility under this notification. The Tribunal found that the appellants were justified in claiming benefits under Notification No. 35/76-C.E. despite availing benefits under a different notification, as the latter was not applicable to a factory covered by the former. Given the substantial benefits under Notification No. 35/76-C.E. and the circumstances of the case, the Tribunal allowed the appeal by remanding the matter for reconsideration by the Adjudicating Authority.

5. The Tribunal directed the Assistant Collector to reevaluate the refund claim in light of the observations made and to issue an appropriate order after hearing both parties. The appeal was allowed by way of remand, emphasizing the entitlement of the appellants to benefits under Notification No. 35/76-C.E. based on the specific circumstances and legal provisions.