TaxTMI 
TaxTMI 
1983 (2) TMI 291
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....d an additional excise duty (leviable under the Additional Duties of Excise (Goods of Special Importance Act 1959) of 5% ad valorem, on the basis of the price determined by the Central Government, from time to time, under sub-section 3 (c) of Section 3 of the Essential Commodities Act, 1955 for "levy sugar." This concession was applicable to sugar which exceeded 35% of the production which was in excess of the "average production". The expression "levy sugar" for the purposes of the Notification was defined to mean "sugar required by the Central Government to be sold under an order made under clause (f) of sub-section (2) of Section 3 of the Essential Commodities Act, 1955". The appellant was clearing sugar in accordance with the provisions of the said Notification with effect from 5-11-1977. On 16-11-1977, the Central Government issued another Notification No. 317/77 which fixed a concessional rate of basic excise duty of 7.5% ad valorem and additional excise duty of 5% ad valorem, on the basis of the price determined by the Government from time to time under the Essential Commodities Act. These concessional rates were applied to sugar required by the Central Government to be sold....
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....eme, the extra levy-free quota of sugar was to be considered as levy sugar only for the purpose of levy of excise duty and not as free sale sugar or, in other words, such sugar free from levy quota attracted excise duty only at the rates applicable to levy sugar. Though Notification No. 36/76 which governed the appellants' clearances of additional free sale sugar prohibited sugar factories covered by it from availing themselves of the benefits of Notification No. 210/73 in respect of sugar cleared in terms of the former Notification, it really did not matter so long as the effective rates prescribed by the two Notifications were the same, viz., 15% ad valorem (basic) and 5% ad valorem (additional excise). However, by Notification No. 317/77 of 17-11-1977, Government fixed the concessional rates of 7.5% ad valorem (basic excise) and 5% ad valorem (additional excise) in respect of levy sugar. These were the rates at the material time. The appellants have contended that it is these latter lower concessional rates of 7.5% ad valorem and 5% ad valorem that were applicable in their case and not the higher rates of 15% ad valorem and 5% ad valorem in terms of Notification 36/76. Otherwise....
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....escribed in respect of levy-sugar did not apply to such sugar cleared in terms of Notification No. 36/76. 6.  We have carefully considered the submissions of both the parties. The short point arising for decision in the present case is as to whether the concessional duty rates prescribed in Notification No. 36/76 of 25-2-1976 or those provided in Notification No. 317/77 of 16-11-1977 would apply in the case of the appellants on sugar cleared in terms of the former Notification. Now, it is an undisputed position that the appellants were entitled to avail themselves of the concession contained in Notification No. 36/76-CE. For the sake of proper understanding, it is better to reproduce the said Notification :- "Notification No. 36/76-C.E., dated 25-2-1976. In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules 1944, read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Central Government hereby exempts sugar falling under sub-item (1) of Item No. 1 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), and which exceeds thirty-five per c....
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....verage production" (defined in the Notification). It further provides that the price to be adopted for the determination of the duty by application of the said concessional duty rates shall be the price determined by the Central Government, from time to time, under Section 3(3c) of the Essential Commodities Act, 1955 for "levy sugar". "Levy sugar" has been defined for the purposes of the Notification as "sugar required by the Central Government to be sold (emphasis supplied by us) under an order made under clause (f) of sub-section (2) of Section 3 of the Essential Commodities Act, 1955". Now, the sugar cleared in terms of Notification No. 36/76 is not "levy sugar" but extra quotas of free-sale sugar. The concession in Notification No. 36/76, therefore, contains two components : one, the lower rates of duty prescribed therein and second, the assessable value is equated to the Government-determined price of "levy sugar". Since, however, such extra quotas of free-sale sugar were not actually "levy sugar" required to be sold in terms of the orders of the Central Government under the Essential Commodities Act, the concessional duty rates notified for "levy sugar" would not be applicabl....