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TMI Blog1995 (3) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No.135/83-CE, dated 30-4-1983. The relevant notification is reproduced as under : - ***** 3. Respondents have filed a refund claim for rebate of Rs. 12,99,218.84 for the excess production of sugar produced during the period from 1-5-1983 to 30-9-1983 as per Notification No. 135/83, dated 30-4-1983. The Assistant Collector restricted the rebate claim to Rs. 6,06,948.60 on the ground that required average for determining the excess production eligible for rebate under the said Notification should have been based on only one year inasmuch as they had produced sugar during the corresponding period of only one out of the three preceding sugar years i.e., 1978-79 and not on the basis of all the three preceding sugar years as was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to the grant of sugar rebate was an issue and, accordingly, it was held therein that nil production in any base year or years did not vitiate the admissibility of the rebate claim. He said that notification involved in this case is differently worded to the other notifications dealt with by the Courts and Tribunal as similarity to clause 3 of the Notification was not there in the respective notifications. Clause 3 of the Notification requires that year or years of Nil production shall be ignored while arriving at the average production and in this case, since Nil production was there in two years, the period of two years shall be ignored for the purpose of calculating average production. Referring to the decision of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity of sugar production should be taken into consideration while determining the average but it does not expressly exclude number of years in which there was no production. Average refers to more than one figure, and since in this case production was only in one year, the question of taking average production does not arise as there was no production in other two years. He also referred to the decision of Bombay High Court in the case of Balasaheb Desai Sahakari Sakhar Karkhana Ltd., v. Union of India and Others, 1982 (10) E.L.T. 866, in support of his contention. While interpreting Notification No. 257/76 it was held that the intent of clause 3 is to ascertain the average production for the purpose of determining on what quantam of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important as it was observed by the Mathematicians and Astronomers and accordingly, average can be worked out even if there was zero. Clause-3 of the Notification is very important as it was argued by the Departmental Representative and in that clause it has been clearly explained that year in which there is no production of sugar shall be ignored and average of production shall be determined by taking into account only in such of the period of which sugar was produced in such factory. Thus, sugar years of which there was no production are to be ignored and they will have to be ignored while working out average , no matter whether it leaves out one for working out average. We also take note of the fact that in the case of Collector of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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