Non obstante clause prevails over incentive scheme, and excess excise duty collected cannot be retained without express statutory authority.

A later fiscal provision with a non obstante clause prevails over an earlier executive incentive scheme, so an assessee cannot retain differential excise duty collected from customers unless the governing exemption notifications expressly permit such retention. The Bombay HC also found no denial of fair opportunity where the assessee was heard through counsel, was given a chance to file material in reply to the show cause notices, and failed to produce the documents later relied on. On that basis, the demand for differential excise duty was sustained and no remand was warranted.

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Issues: (i) Whether the assessee could retain the differential amount of excise duty collected from customers under the sugar incentive scheme in view of Section 11-D of the Central Excise Act, 1944 and the related exemption notifications. (ii) Whether the assessee was denied a fair opportunity to produce documents and be represented, warranting interference or remand.

Issue (i): Whether the assessee could retain the differential amount of excise duty collected from customers under the sugar incentive scheme in view of Section 11-D of the Central Excise Act, 1944 and the related exemption notifications.

Analysis: The incentive scheme of 1987 was only an executive scheme and expressly contemplated separate notifications for excise duty concessions. The Court held that the relevant notifications did not authorize collection and retention of duty in excess of the concessional levy, and that Section 11-D, being a later and specific provision with a non obstante clause, prevailed over the earlier scheme and the provisions of the Essential Commodities Act, 1955. The decisions relied on by the assessee were distinguished on facts and on the legislative setting.

Conclusion: The issue was decided against the assessee and in favour of the Revenue.

Issue (ii): Whether the assessee was denied a fair opportunity to produce documents and be represented, warranting interference or remand.

Analysis: The record showed that the assessee had been heard through counsel, had been afforded opportunity to produce material in reply to the show cause notices, and had not produced the documents on which it later sought to rely. The Court declined to permit a fresh opportunity at the appellate stage and found no procedural infirmity in the adjudication.

Conclusion: The issue was decided against the assessee and in favour of the Revenue.

Final Conclusion: The demand of differential excise duty was upheld, and the appeal failed on both merits and procedure.

Ratio Decidendi: A later fiscal provision with a non obstante clause prevails over an earlier executive incentive scheme, and an assessee cannot retain duty collected in excess of the concessional levy unless the governing statutory notifications expressly authorize such retention.

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