AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 453
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....ise to the Appellant / Assessee which is required to be construed liberally while upholding the impugned order passed by the respondent Authority ? (2) Whether the Tribunal is justified in law to uphold the impugned order passed by respondent Authority, by committing error by misreading and misconstruing the provisions of section 11-D vis-a-vis the provision of Section 5-A of the Central Excise Act, 1944, by failing to construe the aforesaid provisions by adopting principle of purposive interpretation of the statutes in the interest of justice ?" 3] Some of the relevant facts for the purpose of deciding this appeal filed under section 35-G of the said Act, which is numbered as first appeal, are as under. 4] It is the case of the appellant that the appellant was a new sugar factory, established in the capacity of 1250 of TCD and had commenced its production of sugar after obtaining certificate No.845 dated 11th August 1989 from the Government of India, Ministry of Food and Civil Supplies, Department of Food, Directorate of Sugar, New Delhi. It is the case of the appellant that the Central Excise and Customs, New Delhi, had granted exemption under Notification Nos.130/83 and 131/9....
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....v) Quantum of incentives free sale quota: The quantum of incentive under the 1987 Scheme by way of percentage of higher free sale quota, including the normal free sale quota of sugar in respect of new factories and expansion projects shall be in accordance with the scales prescribed in paragraph 2.B(iii) and 2.C(iv) herein under respectively. (v) Excise Duty Concession: In addition to the higher resale quota mentioned above, the new factories and expansion project which become entitled to incentives under the 1987 Scheme will be allowed : (a) to pay excise duty as applicable to levy sugar; and (b) to retain the difference in excise duty as between levy and free sale sugar. in respect of the incentive resale quota in excess o the normal resale quota. (vi) In regard to the excise duty concessions under this Scheme, necessary notification would be issued by the Ministry of Finance (Department of Revenue) separately. 2.B New Sugar Factories: In respect of new sugar factories : (i) For eligibility to incentives under the 1987 scheme, the f.o.r. cost of plant and machinery shall not be below Rs. 400 lakhs. New factories established at a plant and machinery cost of less than Rs. 400....
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.... office of the respondent, through Superintendent of Central Excise, Jalna, issued six notices-cum- demand to the appellant. In the said show cause notices, it was alleged that during the period between 20th September, 1991 and 31st January, 1992 and various period upto July, 1993, the appellant had cleared the white crystal sugar under incentive scheme by charging Excise duty as basic Rs. 17/-, additional Rs. 21/- and cess Rs. 14/- i.e. totaling to Rs. 52/- per quintal and debited the same to their P.L.A. account during the said period between 20-91991 and 31-1-1992. 9] It was further alleged in the said notices that the appellant had actually charged and collected more amount from the customers at the rate i.e. basic Rs. 34/-, additional Rs. 37/- and cess Rs. 14/- totaling Rs. 85/- per quintal as Central Excise duty. The appellant had collected the amount of Rs. 85/- per quintal, however, had deposited Rs. 52/- per quintal with the Central Government. According to the respondents, the appellant had thus withheld a sum of Rs. 60,12,699/-. By those six show cause notices, the Superintendent, Central Excise and Customs, Jalna, directed the appellant to show cause as to why the diff....
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....dities Act, 1955. 15] It is submitted by the learned counsel that the appellant had not retained any portion of the amount of excise duty collected by the appellant from its customers. He submits that the difference between the amount collected by the appellant and deposited by the appellant with the Government was given by way of rebate to the customers and thus no amount was actually retained by the appellant. He submits that the learned Collector, Central Excise and Customs, however, before passing the order on 13th August, 1994, did not give an opportunity to the appellant to produce various documents including the registers maintained by the appellant to show that such rebate was given by the appellant to its customers and no amount of the duty collected by the appellant was retained by the appellant. 16] It is submitted that the learned Collector of Central Excise and Customs did not give any opportunity to the appellant to represent the appellant through an Advocate and passed a common order in respect of several assessees without application of mind and without considering the objections raised and the submissions made by the appellant in reply to the show cause notices i....
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....ssued by the Ministry of Food and Civil Supplies, the appellant has acted upon the said notification and had started a new factory and such benefit already accrued in favour of the appellant under the said exemption notification cannot be taken away by the Central Government purportedly u/s 11-D of the Central Excise and Salt Act, 1944. 20] The learned counsel for the appellant invited our attention to the judgment of the Supreme Court in case of Kisan Sahkari Chini Mills Ltd. v. Collector of Central Excise, Allahabad (2005 (182) E.L.T. 26 (S.C.), which is relied upon by the said Tribunal while rejecting the appeal filed by the appellant. He submits that in the said judgment, the Supreme Court has only interpreted the effect of Section 11-D of the Central Excise and Salt Act, 1944 and has not considered the effect of pre-existing notification issued by the Central Government u/s 3 of the Essential Commodities Act, 1955. 21] Mr.Ladda, learned counsel for the Revenue, on the other hand, placed reliance on various findings recorded by the Collector of Central Excise and Customs in the impugned order and also the findings recorded by the said Tribunal in the impugned order dated 21.1....
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....wever, after perusing the documents produced by the appellant, found that the recovery of excise duty effected by the appellant, was at the rate of Rs. 85/- per quintal, whereas the payment was only made at the rate of Rs. 52/per quintal. He submits that u/s 11-D of the Central Excise and Salt Act, 1944, the appellant could not have retained any part of the duty collected by the appellant from the customers and was liable to pay the entire amount of such duty with the Revenue. 25] It is submitted by the learned counsel for the respondent that the judgment of the Supreme Court in case of Kisan Sahkari Chini Mills Ltd. (supra) squarely applies to the facts of this case. The Supreme Court had considered the issue of incentives granted to the assessee and had categorically held that the incentives did not permit the assessee to collect more than what they had themselves paid, from their customers. 26] Insofar as submission of the learned counsel for the appellant that there was no opportunity granted to appear through Advocate before the learned Collector of Central Excise and Customs or that there was no opportunity to produce any documents before the learned Collector of Central Ex....
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....ingly. 30] A perusal of the order dated 13th August, 1994, passed by the Collector of Central Excise and Customs, indicates that it was a common order in respect of eight assessees including the appellant against whom the demand of excess amount recovered by the appellant was Rs. 6012699/-. By the said common order, the learned Collector of Central Excise and Customs rejected the contentions raised by the assessees including the appellant. A perusal of the said order indicates that the learned Collector of Central Excise and Customs had given personal hearing to all the assessees. Shri K.P. Joshi Advocate had appeared on behalf of the appellant alongwith its representatives before the learned Collector of Central Excise and Customs who had made various submissions. 31] The learned Collector of Central Excise and Customs had observed that all the assessees had availed of the benefits of the incentive scheme dated 4th November, 1987 for payment of concessional rates of duties in terms of notification Nos.130/1983 and 131/1983, both dated 27th April, 1983, and had recovered duty in excess than the rates applicable to free sale sugar and had retained the differential amount of duties....
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....Civil Supplies and thus it could not override the provisions of Section 11-D of the Central Excise and Salt Act, 1944, enacted by the Parliament. The learned Collector of Central Excise and Customs relied upon the judgment of the Supreme Court in case of Bindeshwari Ram v. State of Bihar & others (1990 (27) E.C.R. 82 (S.C.) holding that the executive instructions cannot prevail over the statutory rules and in absence of statutory rules, executive instructions have no relevance or force. The learned Collector of Central Excise and Customs has accordingly rendered a finding that it was established that the excess amount was recovered and retained by all the assessees including the appellant herein representing the duty of excise as an incentive under the incentive scheme dated 4th November, 1987 illegally and thus the appellant was liable to pay the said amount as demanded in the show cause notices issued by the authority. 35] A perusal of the said order passed by the learned Collector of Central Excise and Customs indicates that the said authority has also considered the non obstante clause in Section 11-D of the Central Excise and Salt Act, 1944 and the non obstante clause provide....
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....us for the first time cannot allow the appellant to rely upon any documents, which were not produced before the authority as well as the Tribunal. We are also not inclined to accept the submission of the learned counsel for the assessee that the matter shall be remanded before the learned Collector of Central Excise and Customs for the purpose of giving an opportunity to the appellant at this stage to rely upon such documents, which were not produced in spite of an opportunity granted by the authority to the appellant. 39] In our view, the learned Collector of Central Excise and Customs has rightly held that sub-clause (v) of Clause 2A of the said incentive scheme has to be read with sub-clause (vi), which had made it clear that in regard to the excise duty concessions under the said scheme, necessary notification would be issued by the Ministry of Finance (Department of Revenue) separately. The learned Collector of Central Excise and Customs considered those two notifications, which were issued by the Central Government in this regard from time to time duly amended and has rightly held that none of the notifications permitted the assessee to retain any amount out of the duty reco....