2014 (12) TMI 153

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....ification No. 132/82-C.E., dated 21-4-1982 issued under Rule 8(1) of Central Excise Rules, 1944 prescribed certain quantum of exemption on per quintal basis in respect of free sale of sugar and levy sugar produced in a factory during the period from 1-5-1982 to 30-9-1982, which is in excess of the average production of sugar during the corresponding period of the preceding three sugar years. The appellant towards the end of the sugar season, filed a rebate claim claiming that the excess production during the period from 1-5-1982 to September 1982 was 43,875 quintals of sugar. This rebate claim was filed by them on 3-9-1982. As per the rebate scheme of this exemption notification, 60% of the rebate claim was required to be sanctioned on prov....

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....at the appellant had collected the normal amount of excise duty from their customers and, as such, had not borne the incidence of the duty whose refund is being claimed. The Assistant Commissioner accordingly rejected the rebate claim. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) dismissed the appeal for non-compliance of the provisions of Rule 213 of the Central Excise Rules, 1944. On further appeal to the Tribunal, the Tribunal vide final order dated 19-10-2001 held that the appellant should have been given an opportunity to remove the defects in filing of the appeal, which were curable and remanded the matter to get the defects rectified and decide the appeal as per the law. In de novo pr....

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.... sugar during lean period from May to September when normally the sugar mills do not work, is rejected on the ground of unjust enrichment, the whole purpose of such exemption notification would be defeated. He, therefore, pleaded that the impugned order upholding the rejection of the rebate claim on the ground of unjust enrichment is not correct. 5. Shri Yashpal Sharma, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and relied upon the Apex court judgment in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE & CUS reported in 2005 (181) E.L.T. 328 (S.C.), wherein with regard similar exemption Notification No. 108/78-CE providing for partial exemption from duty in form of rebate....

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....this case, the rebate claim had been presented in September 1982 and 60% of the amount was sanctioned in June 1983. Subsequently while considering the payment of balance amount, the Assistant Commissioner, after issue of show cause notice, rejected the rebate claim as time barred. The matter, thereafter, travelled through the Commissioner (Appeals) up to the Tribunal and the Tribunal decided the matter only in 1996 holding that the rebate claim is not time barred and directed the Assistant Commissioner to process the claim on merits. However, w.e.f. 20th September 1991 Section 11B of the Central Excise Act has been substituted by a new provision. In the new Section 11B, there was no provision for suo motu refund arising out of an appellate ....