1986 (9) TMI 241

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....BY : Smt. Dolly Saxena, SDR, for the Appellants. Shri K.P. Joshi, Advocate, for the Respondents. [Order per : V.T. Raghavachari, Member (J)]. - The issue involved in all these three appeals being common they were heard together. The three respondents had claimed rebate of excise duty in terms of notification No. 108/78-C.E. dated 28-4-1978. The claim was rejected on the ground that the re....

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.... initiated in the three instances that are now before us, on transfer as these deemed appeals. 2. We have heard Smt. Dolly Saxena for the appellant and Shri K.P. Joshi, Advocate for the respondents. 3. Shri Joshi relies upon the decision of the Bombay High Court in Balasahib Desai Sahakari Sakar Karkhana Ltd. v. Union of India (1982 E.L.T. 886 Bombay) in support of his contention that t....

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....tage is available only if the factory is in existence during the preceding five years and has produced sugar in each year of the preceding five years. We are unable to accept the interpretation suggested by the Department and accepted by the authorities below in our judgment, the petitioners are entitled to the advantage of the notification and the Superintendent of Central Excise was clearly in e....

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.... the Government is "further it appears that benefit of notification No. 35/76 dated 25-2-1976 being prima facie applicable to the assessees' factory the assessee would be barred from availing of benefit of notification No. 108/78 by virtue of clause 6 of the said notification No. 108/78." 5. As pointed out for the respondents this ground for denial of benefits had not been raised before th....