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TMI Blog1984 (5) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the entire excess production should be granted rebate as if it had all been cleared as levy sugar. In other words, the lower rates of rebate admissible in respect of levy sugar, corresponding to the lower rate of duty payable thereon, would only be allowed. He further directed that since the duty payable on levy sugar came to only ₹ 18.43 per quintal (as against the maximum rate of rebate or ₹ 22 per quintal admissible on levy sugar) the maximum rate of rebate would be limited to ₹ 18.43 per quintal. On the basis of these findings the Assistant Collector sanctioned rebate of ₹ 17,90,007.85. 3. The appellants went in appeal to the Appellate Collector against the above order. They submitted that the Trade Notice of the Collector of Central Excise, Baroda was issued only on 21-1-1976, whereas the excess production and clearances thereof in this case had already taken place before that date, and therefore there could be no question of their having followed the requirements of Trade Notice. They also claimed that since they were obliged under the law to apportion their sugar production in the ratio of 65% for levy sugar and 35% for free sale sugar, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these calculations, in addition to the rebate already granted namely ₹ 17,90,007.85, a further amount of ₹ 7,72,174.66 was due to the appellants, and he sanctioned that amount. 6. The appellants again went in appeal to the Appellate Collector against the above order. They submitted that the second Assistant Collector had followed a wrong method of calculation, which resulted in 4 slabs or excess production for levy sugar and two slabs of excess production for free sale sugar. He should have followed the same method of calculation as was followed in the first order, wherein the excess production was divided into 5 slabs. They submitted that the Assistant Collector should have first divided the excess production into slabs of 7.5%,10%, 10% and beyond 37.5%, and should thereafter have divided the quantity in each slab in the ratio of 65% and 35% and calculated the rebate allowable on the two sets of quantities at the rates mentioned in the notification. 7. The Appellate Collector rejected the appeal. He observed that the main contention of the appellants was that the Assistant Collector had calculated the excess production for different slabs in his impugned order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Koruthu s contention that the appellants should be given the benefit of this decision, although the appellants had not sought this benefit either in their refund claim or in the appeals or even in the revision application. On Shri Tayal intervening to raise the objection that this ground could not be advanced at this stage, Shri Koruthu stated that he relied on an order of the Tribunal reported in 1984 (16) E.L.T. 419 (Tribunal) = 1984 E.C.R. 688 in the case of Premier Tyres Ltd. v. Collector of Customs, Madras. In that case, the Tribunal by a majority judgment had held that a claim for classification under a tariff heading which was not mentioned at the earlier stage could not be said to be a new claim made on a new basis constituted by new facts, and that refund could be allowed on the basis of the heading newly cited. Shri Koruthu contended that following the above decision, the appellants in the present case should be given the benefit of the decision in the case of Bhopal Sugar Industries. 12. Replying to Shri Koruthu, Shri Tayal strongly submitted that the appellants could not be allowed at this stage to take up the ground of interpretation of the notification with refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the rebate on the excess production should be calculated after apportioning the excess production in the ratio of 65% and 35%, or by treating the entire production as levy sugar; (3) whether the method of calculation followed by the second Assistant Collector, in dividing the excess production into different slabs, was correct; and (4) whether the appellants can at this stage seek the benefit from the interpretation of the notification followed in the case of Bhopal Sugar Industries and other cases. 17. On the question of reprocessing of sugar, as stated in para 9 above, Shri Koruthu had confirmed that the appellants had no grievance and this need not be further pursued. 18. On the question of apportionment of the excess production, the first Appellate Collector had accepted the appellants argument that it was not reasonable to expect them to follow the procedure prescribed in the Trade Notice of the Collector of Central Excise, Baroda, which was issued after the sugar had been produced and cleared. The correctness of this view was not challenged by instituting revisional proceedings under Section 36(2) of the Central Excises and Salt Act as it then stood. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponding to percentages of the excess production and not of the everage production. The Tribunal has been consistently accepting this ground wherever advanced before it. However, in previous cases this ground was taken by the appellants at various stages and kept alive. In the present case, this ground has been taken for the first time in the hearing before us. Shri Tayal vigorously argued that this should not be permitted, and he cited a Judgment of the Delhi High Court and an order of the Tribunal is support of his contention. The pronouncements in these judgments have been referred to in para 12 above. We find that the pronouncement of the Delhi High Court is not very relevant to the present case, because that was with reference to the question whether an assessment which had become final could be reviewed in a civil suit. The decision of the Tribunal in the case of Food Corporation of India (1984 E.L.T. 417) is mere relevant. In that case the appellants had claimed refund on the basis of the value of the goods which was a particular figure. However, at the revision stage they had worked out the value at a lower figure and claimed a higher refund. This claim was not accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the case of the Food Corporation of India. Their submission is that the interpretation of the notification as subsequently given by the Courts and by the Tribunal should be applied while working out the rebate on the basis of the figures furnished by them. Thus, there is no change in the factual submissions made by the appellants, nor in the ground on which their claim was made, namely that they were entitled to the benefit of Notification No. 146/74. However, for the purpose of determining the actual quantum of rebate they are seeking the benefit of a more favourable interpretation of the notification, following subsequent judicial decisions. It appears to us that this could be regarded basically as a case of raising a point of law, which is permissible even at this stage. 24. We, therefore, direct that the amount of rebate due to the appellants be worked out after giving them the benefit of the interpretation which we have been following in the case of Bhopal Sugar Industries and other cases, that is, by working out the slabs as percentages of the excess production. The excess production should first be broken up into slabs of 7.5%, 10%, 10%, 10%, and the balance. Eac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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