AI Drafter 
TaxTMI 
TaxTMI 
1990 (2) TMI 203
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...., vide Notification No. 150/83 dated 13-5-1983, laid down an incentive scheme for higher production for the period 1-3-1983 to 29-2-1984. The appellants having produced Ammonia to the extent of 110% of the base production, during the relevant period, submitted to the Collector, Central Excise, Bombay-11, an application dated 16-10-1984 enclosing therewith all the required statements, and requested to sanction credit of excise duty and to advise them so as to enable them to adjust the same towards payment of excisable goods. From the records, it appears that no action thereon was taken till 1987, when on 20-3-1987, the department issued a notice to show cause, why the claim may not be rejected as time-barred. The record shows that the appellants resisted the same, vide their reply dated 2-4-1987, where inter alia, they contended that the department had misconstrued their application dated 16-10-1984, as the one for Refund, so as to attract the provisions of Sec. 11B of the Central Excises and Salt Act, whereas the said application was merely the one for grant of sanction, for availing the incentive benefit vide notification under Rule 56AA. The Assistant Collector considering the sa....
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....of CEGAT in Collector of Central Excise v. Tulsipur Sugar Co. Ltd. -1988 (34) E.L.T. 647 (Tri.) = 1988 (17) ECR 494 (Cegat SB-D) submitted that rebate is the same as refund. Referring to the decision of CEGAT in Collector of Central Excise v. M/s Matwa Sugar Mills Co. Ltd. -1986 (23) E.L.T. 144 (Tri.) = 1985 ECR 2487, and in M/s. Namdang Tea Co. Ltd. v. Collector of Central Excise, 1987 (12) ECR 262, he submitted that the period of limitation laid down under the statute is also applicable to the incentive rebate. He further submitted that the Tribunal is a creation under the statute, and it has no authority to traverse beyond what has been laid down under the statute. In his submission, the provisions of the statute would prevail over the provisions under the Rule, and though no specific limitation is provided for under this Rule 56AA, the statutory bar of limitation laid down in Sec. 11B does stand attracted, and as such, the authorities below were justified in negativing the claim, which calls for no interference. 5. It is an undisputed position that, it was for the first time on 16-10-1984, and at no date prior to that, the appellants made any application for grant of incenti....
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....les are not expressly linked with the provisions of the section, the provisions of the section cannot stand attracted. 10. The learned advocate however placed very strong reliance on two decisions, one of the Madras High Court in Corborandum Universal Ltd. v. Union of India - 1988 (35) E.L.T. 288 (Mad.) and another of the CEGAT Special C Bench in Collector of Central Excise v. Associated Cement Corporation Ltd. - 1987 (30) E.L.T. 778. Both the cases pertain to grant of exemption from duty by way of incentive for excess production, as provided for in Notification No. 198/76-C.E., dated 16-6-1976. The High Court of Madras, while holding that the claim of the assessee was not barred by limitation under Rule 11 (now Sec. 11B of the Act), has observed thus : "Mr. Habibulla Badsha learned counsel for the petitioner would submit that unless and until the base period and the base clearance are determined and approved by the second respondent, the petitioner would not be in a position to work out and avail of the benefits of the exemption as per the notification and it is the obligation of the second respondent only to determine and approve the base period and the base clearance for t....
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.... that the "base period" and "base clearance" were not specified in the notification, and the same were to be determined by the competent authority, on the claim being preferred by the assessee for claiming excess production incentive. In the Notification No. 150/83 dated 13-5-1983, however, both the base period and base clearance have been specified. Explanation (i) to the said notification specifies the base clearance, and Explanation (2) specifies "base period". Even "incentive period" is also duly specified. Thus, contrary to what was the position in Notification 198/76 dated 16-6-1976, no decision was left for the competent authority to be taken in relation to the base period and base clearance. That being the position, the decision of the Madras High Court, as also of the CEGAT relied upon by the learned advocate for the appellants, cannot render any assistance, to hold that limitation could not be attracted. On the contrary, the said decisions show that after determination of "base period" and "base clearance" the provision of limitation would stand attracted. 13. Reading of sub-rule (2) of Rule 56AA of the Rules, in view of what is discussed above, would indicate that the....
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....of production and removal for home consumption of the excess production goods also, the producer has to initially pay the full duty at the prevailing rate, even though he might have been aware of the same being excess production, as per the criteria provided under the notification, and has to claim "credit" therefore (or a permissible part therefore after the expiry of the incentive period and stipulated date, as provided under the notification. When at the initial stage the amount is already paid, and at subsequent stage only the "credit" for the part of the amount so paid, has to be availed of, it is difficult to hold that the "credit" contemplated here is something different from what is understood as "refund". In other words, the credit envisaged under Rule 56AA is nothing but a refund of the part of the duty initially paid; as a reward or by way of an incentive for the higher production to be utilised towards payment of duty in respect of future clearances. 19. Sub-rule (5) of Rule 56AA, also does not alter the position. It only provides that the credit so available shall not be paid in cash or cheque but could be utilised in payment of duty on excisable goods. This means, ....