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TMI Blog1998 (7) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... duction during May to September in all the preceding three sugar years was nil, the entire production during May to September, 1982, will be entitled to the exemption under this notification 3. The appellants, who manufactured sugar and who had no benefit to derive earlier from the unamended notification, then claimed rebate for clearances effected by them during May, 1982. The Assistant Collector denied the refund claim holding that in the absence of the amending notification, in terms of Rule 9(a) of the Central Excise Rules, 1944, duty had correctly been paid on the clearances made during the month of May, 1982. The Assistant Collector in his findings relied upon the Tribunal judgment in the case of C.C.E. v. Belapur Sugar Allied Industries Ltd. reported in 1986 (23) E. L. T. 252 (Tribunal). In his Order-in-appeal, the Collector upheld the lower order denying the contention of the assessees drawing support from the Tribunal judgment in the case of C.C.E. v. Changalrayan Coop. Sugar Mills Ltd. reported in 1989 (39) E.L.T. 551 (Tribunal). The present appeal is against this order. 4. Shri S.K. Sharma, ld. Advocate stressed that the rationale behind the notifications giving i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not qualify for the benefit on the ground that the amending notification could not have retrospective effect. This judgment was cited before the Tribunal in the later case of Chengalrayan Co-op. Sugar Mills Ltd. (supra) by the Revenue. The Tribunal in paragraph 20 of the judgment also held that the amending Notification 193/82 would have only prospective effect. However, the Supreme Court in the case of Neoli Sugar (supra) had made the following observations : "It is then argued by the learned Counsel for the appellant that exemption notifications should be strictly concluded. There is no quarrel with the proposition but there is another equally valid principle that such notifications should be given their due effect, keeping in view the purpose underlying." 8. It is significant that the Supreme Court was dealing in this case with a similar notification. The observations of the Andhra Pradesh High Court in the case of Salem Coop. Sugar Mills Ltd. (supra) also, therefore, are material. In paragraph 7, the High Court observed as under : "Considering the aforesaid rival contentions of the respective parties, it is the intention of the Govt. of India to provide incentive in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Bharat Heavy Electricals Ltd. reported in 1992 (61) E.L.T. 332 were examining two notifications issued under the Customs Act. Of the two interpretations available, the Supreme Court chose that interpretation which not only did not do violence to the language of the notification, but on the other hand, gave effect to the true intent and purport. The Bombay High Court also in their judgment in the case of Someshwar Sahakari Sakar Karkhana reported in 1988 (34) E.L.T. 522 observed that the scheme and object of a notification was necessary to be kept in view while interpreting a notification. The Supreme Court in the cited case of Neoli Sugar Factory also had urged that the purpose underlying the issue of the notification is an important aspect in the interpretation thereof. It is, therefore, our considered opinion that the principle that a notification should be construed strictly although is of general application cannot apply to each and every case but that in certain cases, the underlying purpose has to be examined. It is also to be ensured that the interpretation of a notification does not create an anomalous situation. The present appeal deals with the benefits to be extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding notification, in terms of Rule 9(a) of the Central Excise Rules, 1944 duty had correctly been paid on the clearances made during the month of May, 1982. While arriving at the conclusion he relied upon the decision of the Tribunal in the case of CCE v. Belapur Sugar and Allied Industries reported at 1986 (23) E.L.T. 252. It was the contention of the party before the Collector (Appeals) that Notification 132/82 as amended by Notification No. 193/82 has in-built provision in granting concession to sugar produced during May to September, 1982 and relying upon the judgment of the Tribunal in the case of CCE v. Changalrayan Coop.Sugar Mills Ltd. reported in 1989 (39) E.L.T. 551, it was contended that Notification 193/82 is to be given retrospective effect. The Collector of Central Excise (Appeals) negatived the contentions of the assessee and upheld the view taken by the Assistant Collector in his impugned order. 17. It was argued before us that a notification should be given its due effect and the intention of the notification has to be taken into consideration while granting exemption and the Notification No. 193/82 is mere of a clarificatory in nature and accordingly the notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, as proposed by the Member (Technical); or Whether the appeal is liable to be dismissed denying the benefit following the earlier decisions, as proposed by Member (Judicial). Sd/- (J.H. Joglekar) Member (T) Date : 16-1-1998 Sd/- (G.A. Brahma Deva) Member (J) THIRD MEMBER S OPINION 21. [Order per : P.C. Jain, Member (T)]. - Short question before me, as a result of difference of opinion between the two ld. Members is whether the Notification 193/82-CE, dated 11-6-1982 is to be construed as having effect from 1-5-1982 or it would be effective from the date of notification i.e. from 11-6-1982. 22. I have heard the ld. Advocate Shri S.K. Sharma for the appellants in the absence of any representative from the Revenue despite waiting for the whole of the day and even after giving a pass-over to the Revenue on its request. 23. Ld. Advocate has generally reiterated the opinion of the ld. Technical Member expressed above. He has stated that plain language of para 4 of the amending notification gives exemption from duty to the entire sugar produced during the period 1-5-1982 to 30-9-1982 by a factory which has not operated/worked during the corresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r during the said period. He said that in identical circumstances, Collector (A) allowed refund of duty to Panipat Sugar Mills. To deny refund to the appellants, submits the ld. Advocate, is to discriminate against the appellants. 26. I have carefully considered the submissions of the ld. Advocate. To give effect to the provisions of a notification issued under Rule 8(1) of the Central Excise Rules, certain well-settled propositions of law have to be kept in mind. These are :- (i) A notification takes effect from the date of its issue unless it makes clear that it would take effect from a particular (future) date to be appointed or unless it is held to be of clarificatory nature. (ii) A delegated legislative authority cannot make any legislation with retrospective effect unless the statute confers such powers on such authority. [Cannanore Spinning and Weaving Mills - 1978 (2) E.L.T. J375 (S.C.) 27. Applying the aforesaid principles, Notification 193/82-CE, dated 11-6-1982 will ordinarily take effect from 11-6-1989. Para 4 of Notification 193/82-CE, by necessary implication, could be treated as effective from 1-5-1982 because it exempts sugar produced from 1-5-1982. Yet it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced by retrospective applicability of the said notification. The very expression encouragement or `incentive' to produce sugar during the lean period implies encouragement or incentive for future. There cannot be any encouragement or incentive for the past. What is past is past and cannot be undone. One can understand giving reward for a past act. But encouragement or incentive for the past period is incomprehensible. Notification dated 11-6-1982 may lure the producers of sugar to start production from 11-6-1982 and/or to continue the production till 30th September, 1982. But a notification dated 11-6-1982 cannot increase production of sugar for period prior to 11-6-1982. Whatever sugar has been produced till 10-6-1982 will remain at that level. Therefore, in my view, it is a superficial argument to say that giving retrospective effect to notification dated 11-6-1982 will advance the purpose or object of the notification. In fact, only prospective effect to the notification will give encouragement to produce sugar during the prospective period upto September, 1989. 30. Sugar produced and cleared during the period 1-5-1982 to 10-6-1982 was cleared according to the law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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