TMI Blog2011 (5) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... B.K. Singh, Jt. CDR for the Respondent Per Mr. Justice R.M.S. Khandeparkar (for the Bench): Heard at length the learned advocate for the appellants and Jt. CDR for the respondents. This appeal arises from order dated 13.4.09 passed by the Commissioner (Appeals), Meerut. By the impugned order, the appeal filed by the appellants against the order of the adjudicating authority has been dismissed. The Assistant Commissioner, Barailly by order dated 31.12.08 had confirmed the demand for Rs.28,01,370/- being the amount equivalent to the differential excise duty collected in excess by the appellants and not paid to the Central Government on the clearance of 84890 Qtls. of V.P. sugar manufactured during the period from September, 1991 till January, 1993. The said demand was confirmed in exercise of powers under section 11D of the Central Excise Act, 1944 along with the interest thereon. 2. The appellants are engaged in manufacture of cane sugar and molasses classifiable under Chapter sub heading 1701 1190 and 1703 1000 respectively of the first schedule to the Central Excise Tariff Act, 1985. 3. It is the case of the department that in the course of scrutiny of monthly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to the period from September, 1991 to January, 1993 whereas the show cause notice was issued on 29.11.94. Though there is no specific period of limitation specified under section 11D, provisions of section 11A will have to be taken into consideration while exercising the powers under the said sections for the purpose of recovery of amount. Considering the same, according to the learned advocate, the show cause notice did not invoke the extended period of limitation and it was issued beyond the period of 6 months from the relevant period and therefore, the claim was barred by limitation. 5. The Jt. CDR on the other hand, justifying the impugned order and placing reliance on the decision in the matter of Sahakari Khand Udyog Mandal Ltd. vs. CCE Customs reported in [2005 (181) ELT 328( SC)], CCE Jaipur vs. Raghuvar (India) Ltd. reported in [2000 (118) ELT 311 (SC)] submitted that notification No. 130/83-CE dated 27.4.1983 (as amended) nowhere permits collection of any amount as duty over and above what is permissible under the notification and, therefore, any amount collected by the assessee over and above the amount permissible under the said notification would be recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.11.1987. In the background of these undisputed facts entire controversy will have to be decided. 8. If one reads both the notifications referred to above, they specifically grant exemption to the product which is cleared as additional entitlement under the Incentive Scheme. In other words, the benefit of exemption was granted by the Government under the said Act knowing well that such exemption was meant for those manufacturers who are entitled to avail the incentive benefit under the Incentive Scheme dated 4.11.1987. It is to be noted that Incentive Scheme was in vogue since 1975 onwards and was reviewed from time to time. 9. Clause (2)A (v) of the said Scheme read as under:- In addition to the higher free sale quota mentioned above, the new factories and expansion projects 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 incentive free sale quota in excess of the normal and the free sale quota . 10. The plain reading of said both notifications along with the said scheme evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is apparent that the scheme was drawn taking into consideration all the aspects related to the development of sugar industry in the country. This is further apparent from the preamble of the said scheme wherein it was been clearly recorded that on the request of the Central Financial Institutions to review the 1980 scheme due to changes in the parameters governing it, the Government constituted an inter-Ministerial Group under the Chairmanship of Shri V. Lakshmi Ratan, Joint Secretary (sugar) to examine the issues and to recommend a suitable incentive scheme. Apparently it was well thought out scheme and took into consideration various aspects regarding the development of sugar industry that the scheme was drawn and as a part of the said scheme, the notifications giving exemption were issued. 12. Once all the above aspects are clear, we fail to understand the attempt of the department seeking to invoke Section 11D and to defeat the very purpose of the Incentive Scheme and also consequently deny benefit under the new scheme to the manufacturer who is entitled to avail the same. If the contention sought to be canvassed on behalf of the department is accepted, it would virtual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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