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TMI Blog1996 (7) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... gment and order of a Division Bench of the High Court at Allahabad dismissing a Writ Petition filed by the appellants. 2.The appellants manufacture sugar at a factory at Laksar in Saharanpur District of the State of Uttar Pradesh. They are liable to pay excise duty and additional and special duties of excise. They made a claim for exemption within the provisions of an Exemption Notification dated 28th April, 1978, issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, whereby free sugar and levy sugar produced in a sugar factory during the period 1st May, 1978 to 30th September, 1978 was exempt at the rate therein specified if it was in excess of the average production of the corresponding period of the preceding three suga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund of duty had been obtained by fraud, collusion, wilful mis-statement or suppression of fact, which attracted the limitation period of five years. The entire data having been divulged to the authorities at the time the claim was preferred, there was no justification for the notice after the period of six months. The reply to the notice also dealt with the merits of the claim to the rebate. 5. On 10th February, 1983 the Assistant Collector of Central Excise, Saharanpur, confirmed the demand made by the notice. He dealt first with the merits of the claim to rebate and then stated :- "Since the amount of rebate was much more than the duty actually paid the party should have informed the department about this fact and also should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the amount specified therein. The Assistant Collector had recorded a clear-cut finding that the appellants had cleared free sale sugar as levy sugar, that they had got credited as the amount of rebate much more than the duty that had been paid and that the appellants had concealed relevant facts and been guilty of wilful mis-statement with the intention to avoid the payment of duty. 7.Learned counsel for the appellants argued that, in the circumstances of the case, the demand was time-barred. He also argued that, in any event, the demand was unjustified. We are not inclined to go in the second aspect for we are satisfied on the first. 8.In reply to the first contention aforestated, learned counsel for the authorities submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the assessee falling within the four corners of the said proviso. 10.In view of the fact that the notice fails to refer to any of the acts of commission or omission enumerated in the relevant proviso to Rule 10, the notice, given more than six months after the date of the order of refund, is time-barred. Put differently, the Superintendent who issued it had no authority to do so. 11.The appeal is allowed. The judgment and order under appeal is set aside. The Writ Petition filed by the appellants in the High Court at Allahabad is made absolute. The respondents shall refund to the appellants the sum of Rs. 2,68,285.76 paid in satisfaction of the demand made by the impugned show cause notice. 12.There shall be no order as to costs.< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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