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TMI Blog1989 (1) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... ties Act, 1961 enclosing the certificate of registration and the registered by-laws of the Society. (It authorised the Society to start functioning). (iii) A certificate in regard to the registration of the Ulundurpet Co-operative Sugar Mills Ltd. dated 29th June, 1978. (iv) A letter from the Ministry of Industry, Govt. of India dated 27.3.1982 stating that it has been decided that the name of M/s. Ulundurpet Co-operative Sugar Mills Ltd. be changed to read as M/s. Chengalrayan Co-operative Sugar Mills Ltd. 2. Smt. Vijay Zutshi, SDR, who appears for the department objects to the additional documents which, she says, relate to another unit i.e. M/s. Ulundurpet Co-operative Sugar Mills Ltd. 3. Shri Krishna Kumar, advocate, who appears for the respondents points out that M/s. Ulundurpet Co-operative Sugar Mills Ltd. was the original name of the respondent company. The learned SDR then leaves it to the Bench saying that these aspects have not been gone into by the lower authorities. 4. We have considered this request for filing additional evidence. We find that these documents are contemporaneous and also throw some light on the date when the respondent company came into exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gible for exemption. It is stated that in Para 3 ibid, it is provided that where production in any of the preceding three sugar years was nil, the average shall be of the corresponding period among the preceding three sugar years in which the factory had actually produced and the periods in which it did not produce during the said three years shall be ignored while arriving at the average. The department has also relied upon the judgment of the Delhi High Court in Civil Writ No. 2999/82 in the case of M/s. Chhata Sugar Co. Ltd. 8. The respondents, on the other side, have filed cross-objections in which the grounds taken are as follows :- (i) The Collector of Central Excise (Appeals) erred in law in recording that the amending notification No. 193/82 shall only have prospective effect and not retrospective effect. It is very clear the purpose of the amendment was to give a retrospective effect. (ii) The Collector of Central Excise (Appeals) erred in recording this view without giving any opportunity to the respondent to argue on the issue. In a further amendment of these Cross-objections, it is stated, that the learned Collector (Appeals) had mentioned incorrectly in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82, is applicable only prospectively and not retrospectively, the learned Collector failed to take note of Section 5 of Provisional Collection of Taxes Act, 1951 according to which, it is the notification as issued with reference to the relevant Finance Act (as distinguished with relevant Finance Bill) which would prevail and all refunds that became due according to the final position under the Finance Act had to be sanctioned whenever there had been excess recovery by virtue of the provisions of the Finance Bill, read with the provisions of Provisional Collection of Taxes Act, 1931. 12. Smt. Vijay Zutshi, SDR, stated that she relies on the following case law :- (1) 1986 (23) E.L.T. 252 - Collector of Central Excise, Aurangabad v. Belapur Sugar Allied Industries Ltd. (2) 1988 (33) E.L.T. 505 - Gangapur S.S.K. Ltd. v. Collector of Central Excise, Aurangabad. On the other hand, Shri Krishna Kumar, Advocate cites the following case law in his favour :- (1) 1987 (29) E.L.T. 614 - Collector of Central Excise, Aurangabad v. Marathwada Sahakari Sakhar Karkhana Ltd. (2) 1988 (34) E.L.T. 387 - Collector of Central Excise, Chandigarh v. Jagatjit Sugar Mills. (3) 1982 E.L.T. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere provided that the benefit of the Notification was available only if the factory was actually in existence during the entire preceding 5 year period and had produced sugar in each of the preceding 5 years. 15. There are a number of other decisions of this Tribunal in which it has already been held that the fact that there had been no production in the corresponding period of the base-year would not disentitle the factory to sugar rebate under the relevant notification. In this connection we may refer to the decision of this Bench in the case of Collector of Central Excise, Chandigarh v. Jagatjit Sugar Mills [1988 (34) E.L.T. 387] and Yashwant Sahakari Sakhar Karkhane Ltd. v. Union of India and Others decided by the High Court [1986 (26) E.L.T. 904]. We fully agree with the view taken on this issue and hold that even if it were a fact that the respondents unit had not been in existence during a part of the relevant sugar year period, this would not disentitle them from claiming the incentive rebate, if otherwise admissible. 16. In this view of the matter, it is not necessary for us to go into the claim made by the respondents that the observation of the Collector of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption is in favour of prospective effect. The use of words entire production occurring in the substituting clause as inserted on 11.6.1982 was duly considered. However, in view of Central Excise Rule 9A, it was held that there cannot be any contrary interpretation. We concur in this view. 18. We have duly noted that Notification No. 132/82 was issued in exercise of the powers conferred by sub-rule (1) of Rule 8 of Central Excise Rules, 1944, read with sub-clause (4) of Clause 50 of the Finance Bill, 1982. This sub-clause of Clause 50 of the Finance Bill relates to levy and collection of special duty of excise and is, therefore, of no avail so far as the case of the respondents is concerned. 19. Finally, the claim of the respondents as regards the applicability of time bar in view of the fact that the recovery of rebate was sanctioned on 13.5.1983, whereas the Show Cause Notice for the rejection was issued on 30.11.1983, i.e. more than 6 months after the sanction. There are various decisions of this Tribunal - Triveni Engineering Works Ltd. v. Collector of Central Excise, New Delhi -1986 (26) E.L.T. 583 and Collector of Central Excise, Allahabad v. Balarampur Chini Mill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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